UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBILARY 


"lUW 


A  COMMENTARY 


ON  THE 


LAW  OF  EVIDENCE 


IN  CIVIL  ISSUES. 


BY 


FRANCIS   WHARTON,  LL.  D., 

AUTHOR  OF  TREATISES   ON   CONFUCT   OP    LAWS,   MEDICAL  JURISPRUDENCE,   NEOLIGENCB, 
AGENCY,    AND   CRIMINAL   LAW. 


IN  TWO  VOLUMES. 

VOLUME  I. 


PHILADELPHIA : 

KAY  AND  BROTHER  17  AND  If)  SOUTH  SIXTH   STREET, 

1877. 


Entered,  according  to  Act  of  Congress,  in  the  year  1877,  by 

FRANCIS  WHARTON, 
In  the  Office  of  the  Librarian  of  Congress  at  Washington. 


RIVERSIDE,    CAMBRIDGE: 
PRINTED  BT  H.   0.   HOOGHTON  AND   COMPANY. 


PREFACE. 


The  changes  in  the  Law  of  Evidence,  which  the  following 
pages  are  designed  to  meet,  are  as  follows :  — 

1.  The  admission,  as  witnesses,  not  merely  of  interested  per- 
sons, but  of  parties.  The  first  and  most  obvious  result  of  this 
change  is,  that  a  vast  mass  of  rulings,  embracing  about  one  sixth 
of  the  common  law  cases  on  evidence,  has  become  useless ;  while 
in  the  shape  of  adjudications  on  the  new  statutes,  we  have  a 
series  of  decisions  which  abound  in  important  distinctions,  and 
demand  careful  discussion.  But  the  results  of  the  rehabilitating 
statutes  are  not  confined  to  the  branch  of  law  with  which  they 
are  immediately  concerned :  our  whole  system  has  been  sympa- 
thetically affected  by  the  change.  The  doctrine  of  presump- 
tions, as  will  hereafter  be  more  fully  shown,^  that  of  intent,^ 
that  of  fraud,^  and  that  of  relevancy,*  are  necessarily  modified 
by  so  great  an  alteration,  not  merely  in  the  form,  but  in  the 
principles  of  jurisprudence.  It  is  proper  that  these  modifications 
should  be  specifically  discussed. 

2.  The  disuse  of  special  pleading,  and  the  almost  unlimited 
liberty  of  amendment  in  civil  issues,  have  rendered  practically 
obsolete,  in  such  issues,  the  old  decisions  on  variance.  These 
decisions,  in  relation  to  criminal  trials,  so  far  as  they  are  still 
operative,  I  have  analyzed  in   my  work  on   Criuiiiud   Law.     It 

1  See  infra,  §§  4G0,  4G1.  8  i^n-a,  §  853. 

a  Infra,  §  482.  '  ♦  Infra,  §§  2r)-54. 

iii 


GGV767 


PREFACE. 

would  be  not  onl}^  a  cumbrous  but  a  useless  repetition,  to  insert 
them  in  the  present  treatise. 

3.  In  England,  by  the  recent  Judicature  Act,  it  is  provided 
that  wherever  the  rules  of  equity  and  of  common  law  differ,  the 
courts  are  to  follow  equity ;  and  we  are  now  told,  by  the  highest 
autliority,  that  the  term  "  rules,"  in  the  statute,  includes  "  doc- 
trines." 1  Towards  the  same  result,  our  American  jurisprudence 
has  moved,  in  those  states  which  have  distinct  equity  courts,  with 
steps  more  or  less  rapid ;  while  in  other  states,  equity  doctrines, 
so  far  as  concerns  evidence,  have  been  from  the  beginning  ac- 
cepted as  part  of  the  common  law.  I  have  therefore  thought  it 
proper  to  incorporate  in  my  text  the  principles  of  equity  evi- 
dence. 

4.  The  old  common  law  rules  with  regard  to  relevancy  can  no 
longer  be  maintained  against  the  criticisms,  first,  of  Mr.  Ben- 
tham,  then,  of  Mr.  J.  S.  Mill,  and  more  recently,  of  Mr.  Fitz- 
james  Stephen ;  nor,  in  fact,  do  we  find  these  rules  recognized, 
in  the  shape  in  which  they  were  formerly  put,  in  our  later  au- 
thoritative adjudications.  Relevancy,  it  is  now  felt,  is  to  be  de- 
termined by  the  laws,  not  of  formal  jurisprudence,  but  of  free 
logic ;  and  in  obedience  to  this  conviction,  we  have  a  series  of 
recent  rulings  based  on  logical,  as  distinguished  from  techni- 
call}^  juridical  grounds.  These  decisions  I  have  endeavored  to 
systematize,  discussing,  at  the  same  time,  the  leading  theories 
by  which  they  may  be  harmonized. 

5.  To  presumptions,  as  will  hereafter  be  seen  more  fully ,^ 
the  observations  just  made  apply  with  increased  force.  Of  the 
old  presumptions  juris  et  de  jure,  scarcely  a  representative  re- 
mains ;  presumptions  of  law,  in  the  technical  sense,  retain  a  per- 
manent existence,  but  with  ranks  greatly  diminished.  Presump- 
tive proof,  taking  it  in  its  general  sense,  is  now,  such  is   the 

1  Lord  Coleridge,  C.  J.,  cited  Lon-         ^  i^fra,  §§  I23i-1236. 
don  Law  Times,  Feb.  3,  187  7,  p.  235. 
iv 


PREFACE. 

tendency  of  our  adjudications,  inductive,  not  deductive  ;  and  is 
regulated,  therefore,  not  by  tests  applied  generically,  before  the 
evidence  is  opened,  but  by  tests  applied  specifically,  after  the 
evidence  is  closed. ^  To  illustrate  this  tendency  requires  a  re- 
adjustment, which  I  have  attempted,  of  the  whole  law  in  this 
relation ;  so  that  our  authorities  can  be  considered  in  their  log- 
ical, as  well  as  in  their  technical  juridical  relations: 

Two  other  observations  I  must  be  permitted  to  make.  The 
first  is,  that  while,  by  the  addition  of  a  third  volume,  the  present 
commentary  could  have  been  extended  so  as  to  include  a  treatise 
on  evidence  in  criminal  issues,  it  seemed  to  me  better  to  retain 
the  latter  topic  in  my  work  on  Criminal  Law.  In  civil  trials 
there  is  rarely  occasion  to  cite  a  ruling  on  criminal  evidence ;  in 
criminal  trials,  it  is  a  convenience  for  the  practitioner  to  have 
by  him,  in  an  entire  work,  whatever  appertains  to  the  issue  with 
which  he  is  concerned.  The  second  observation  I  would  add  is 
in  the  nature  of  an  apology  —  not  for  tlie  first  time  made  by 
me  —  for  the  apparent  redundancy  of  my  citations  of  authori- 
ties. If  this  be  excepted  to,  I  might  reply  that  it  would  have 
been  far  easier  to  have  cited  only  leading  cases  from  what  might 
be  called  leading  states.  This  course  I  once  pursued ;  but  the 
changes  that  have  occurred  since  I  published  my  first  law  book 
have  admonished  me  that  neither  leading  cases  nor  leading 
states  can  be  relied  on  as  permanently  retaining  their  rank. 
Several  American  States  which,  twenty  years  ago,  had  only  ter- 
ritorial courts,  now  take  a  justly  authoritative  standing  in  our 
jurisprudence;  and  many  decisions  which,  twenty  years  ago, 
were  leading,  have  now  been  overruled,  or  have  become  obsolete. 
I  have  therefore,  on  each  point,  cited,  as  far  as  I  could  collect 
them,  the  rulings,  no  matter  how  obscure,  of  each  of  our  Amer- 
ican States,  no  matter  how  recent  its  establishment.  One  other 
reason  for  this  course  I  may  adil.     To  a  thorough  student,  the 

1  Sec  infra,  §  1237  tl  seq. 


PREFACE. 

text  is  as  much  explained  by  the  citations,  as  ai'e  the  citations 
by  the  text.  "  A.  v.  B.,"  "  C.  v.  D.,"  "  E.  v.  F.,"  at  the  first 
siglit  appear  dead  formulas.  They  are,  however,  living  signs, 
giving  us  the  means  of  inquiring  how  the  doctrine  of  the  text 
works  in  real  life,  to  what  limitation  it  is  subject,  of  what  elas- 
ticity it  is  capable.  They  not  only  dramatize  the  subject,  but, 
as  no  two  cases  are  alike,  and  each  new  case  brings  up  a  new 
application,  they  open  a  series  of  refined  distinctions  which,  while 
necessary  to  the  practitioner  for  their  authoritativeness,  may  be 
resorted  to  by  the  student,  as  affording,  in  connection  with  the 
maxims  which  they  illustrate,  the  only  mode  of  fully  mastering 
the  science  of  jurisprudence.  With  peculiar  force  does  this  ob- 
servation apply  to  a  country  in  which,  as  in  our  own,  each  state 
not  only  has  a  distinctive  population,  but  has  received,  either  by 
tradition  or  by  code,  a  jurisprudence  in  some  respects  peculiar  to 
itself. 

F.  W. 
March  7,  1877. 

VI 


TABLE   OF   CONTENTS. 


BOOK  I. 
REQUISITES   OF  PROOF. 

CHAPTER  I. 

PRELIMINARY  CONSIDERATIONS,  §§  1-15. 

CHAPTER   II. 
RELEVANCY,  §§  20-56. 

CHAPTER   III. 

PRIMARmESS  AS  TO  DOCUMENTS,  §§  GO-163. 

I.  General  rules,  §  GO. 
II.  Exceptions,  §  77. 
ni.  Different  kind  of  copies,  §  89, 
IV.  Secondary  evidence  may  be  received  when  primary   is   unpro- 

ducible,  §  129. 
V.  So  when  document  is  in  hands  of  opposite  party,  §  152. 

CHAPTER  IV. 

PRIMARINESS  AS  TO  ORAL  TESTIMONY,  §§  170-2G9. 

I.   Hearsay  generally  inadmissible,  §  170. 
II.  Exception  as  to  witness  on  former  trial,  §  177. 
HI.   Exception  as  to  depositions  in  perpctunmmemoriam,  §  181. 
IV.  Exception  as  to  matters  of  general  interest  and  ancient  posses- 
sion, §  185. 

vii 


TABLE  OF  CONTENTS. 

V.  Exception  as  to  pedigree,  relationship,  birth,  marriage,  and  death , 
§201. 
VI.  Exception  as  to  self-disserving  declarations  of  deceased  persons, 

§  22G. 
VII.  Exception  as  to  business  entries  of  deceased  persons,  §  238. 
VIII.  Exception  as  to  general  reputation,  §  252. 
IX.  Exception  as  to  refreshing  memory,  §  257. 

X.  Exception  as  to  res  gestae,  §  258. 
XI.  Exception  as  to  declarations  concerning  parties'  health  and  state 
of  mind,  §  268. 


BOOK  II. 
MODE   OF  RECEIVING  PROOF. 

CHAPTER  V. 

JUDICIAL  NOTICE,  §§  276-340. 

I.  General  rules,  §  276. 
II.  Codes  and  their  proof,  §  287. 

III.  Executive  and  judicial  documents,  §317. 

IV.  Notoriety,  §  327. 

CHAPTER  VI. 

INSPECTION,  §§  345-347. 

CHAPTER    VII. 

BURDEN  OF  PROOF,  §§  353-371. 

CHAPTER  VIII. 

WITNESSES,  §§  376-609. 

I.  Procuring  attendance,  §  376. 
II.  Oath  and  its  incidents,  §  386. 

III.  Privilege  from  arrest,  389. 

IV.  Who  are  competent  witnesses,  §  391. 

V.  Distinctive  rules  as  to  husband  and  wife,  §  421. 

VI.  Distinctive  rules  as  to  experts,  §  434. 

viii 


TABLE  OF  CONTENTS. 

VII.   Distinctive  rules  as  to  parties,  §  457. 
VIII.  Examination  of  witnesses,  §  491. 
IX.  Refreshing  memory  of  witness,  §  516. 

X.  Cross-examination,  §  527. 
XI.  Impeaching  witness,  §  549. 

XII.  Attaclcing  and  sustaining  impeaching  witness,  §  568. 

XIII.  Sustaining  impeached  witness,  §  569. 

XIV.  Reexamination,  §  572. 

XV.  Privileged  communications,  §  576. 
XVI.  Depositions,  §  609. 


CHAPTER  IX. 

DOCUMENTS,  §§  614-756. 

I.  General  rules,  §  614. 
II.  Interlineations  and  alterations,  §  621. 

III.  Statutes  ;  legislative  journals ;  executive  documents,  §  635. 

IV.  Non-judicial  registries  and  records,  §  639. 

V.  Records  and  registries  of  birth,  marriage,  and  death,  §  649. 
VI.  Corporation  books,  §  661. 

VII.  Books  of  history  and  science  ;  maps  and  charts,  §  664. 
VIII.  Gazettes  and  newspapers,  §  671. 
IX.  Pictures,  photographs,  and  diagrams,  §  676. 

X.  Shop  books,  §  678. 
XI.  Proof  of  documents,  §  689. 
XII.  Inspection  of  documents,  by  order  of  court,  §  742. 


CHAPTER  X. 

JUDGMENTS  AND  JUDICIAL  RECORDS,  §§  758-841. 

I.  Binding  effect  of  judgments,  §  758. 
II.  When  judgment  may  be  impeached,  §  795. 

III.  Awards,  §  800. 

IV.  Judgments  of  foreign  and  sister  states,  §  801. 
V.  Administration,  probate,  and  inquisition,  §  810. 

VI.  Judgmcjit,  as  a  protection  to  judge,  §  813. 
VII.  Judgments  in  rem,  §  814. 
VIII.  Judgments  viewed  evidentially,  §  819. 
IX.  Records  as  admissions,  §  836. 

ix 


TABLE  OF  CONTKNTS. 


CHAPTER  XL 

STATUTORY    EXCLUSION    OF   PATIOL    PROOF.  — STATUTE    OF 
FRAUDS,  §§  850-890. 

I,  General  considerations,  §  850. 

II.  Transfers  of  land,  §  854. 

III.  Sales  of  goods,  §  869. 

IV.  Guarantees,  §  878. 

V.  Marriage  settlements,  §  882. 
VI.  Agreements  in  futuro,  §  883, 
VII.  Wills,  §  884. 
VIII.  Equitable  modifications  of  statute,  §  901. 

CHAPTER    XII. 

DOCUMENTS  MODIFIED  BY  PAROL,  §§  920-1070 

I.  General  rules.  §  920. 
II.  Special  rules  as  to  records,  statutes,  and  charters,  §  OHO. 

III.  Special  rules  as  to  wills,  §  992. 

IV.  Special  rules  as  to  contracts,  §  1014. 
V.  Special  rules  as  to  deeds,  §  1050. 

VI.  Special  rules  as  to  negotiable  paper,  §  1058. 
VII.  Special  rules  as  to  other  instruments,  §  1063, 


BOOK  III. 
EFFECTS  OF  PROOF. 

CHAPTER  XIII. 

ADMISSIONS,  §§  1075-1220 

I.  General  rules,  §  1075. 
II.  Admissions  injudicial  proceedings,  §  1110, 

III.  Documentary  admissions,  §  1122. 

IV.  Admissions  by  silence  or  conduct,  §  1136. 
V.  Admissions  by  predecessor  in  title,  §  1156, 

VI.  Admissions  of  agent,  and  attorney,  and  referee,  §  1170. 

X 


TABLE  OF  CONTENTS. 

VII.  Admissions  by  partners  and  persons  jointly  interested,  §  1192. 
VIII.  Admissions  by  representative  and  principal,  §  1208. 
IX.  Admissions  of  husband  and  wife,  §  1214. 

CHAPTER   XIV. 

PRESUMPTIONS,  §§  1226-1365. 

I.  General  considerations,  §  1226. 
II.  Psychological  presumptions,  §  1240. 

III.  Physical  presumptions,  §  1270. 

IV.  Presumptions  of  uniformity  and  continuance,  §  1284. 
V.  Presumptions  of  regularity,  §  1297. 

VI.  Presumptions  as  to  title,  §  1331. 
VII.  Presumptions  as  to  payment,  §  1360. 

xi 


ERRATA. 


VOLUME  I. 

Page  16.   Line  16,  for  "  recordo  "  read  "  ricordo." 

31.   3d  line,  for  "  either  "  read  "  any." 

36.   1st  line,  for  "  either"  read  "  any." 
110.   5th  line,  for  "  were  "  read  "  was." 
126.   2d  line,  for  "  can  only  "  read  "  cannot." 
130.   5th  line,  dele  "§  115." 

194.    lOlh  line  from  bottom,  for  "  have  "  read  "  has." 
211.   3d  line  from  bottom,  for  "  declaration  "  read  "  declarations." 
328.   9th  line  from  top,  change  "  ;  "  for  "  , ". 
332.    7th  line,  for  "  probahatilur  "  read  " prohantur." 
376.   9th  line,  for  "  is  "  read  "  are." 
444.   Note,  parag.  3d,  add  "The  above  statute  was  repealed  by  the  act  of  1870, 

ch.  393,  quod  vide." 
507.   8th  line  from  bottom,  for  "  are  "  read  "  is." 
525.   In  the  place  of  "  contradict,"  in  line  2,  insert  "  to  prove  a  case  inconsistent 

with  that  stated  by  ". 
550.   4th  line,  for  "  reexamine  his  witnesses  "  read  "  thus  remould  his  case." 

VOLUME   11. 

Page  40.   3d  line,  §  798,  after  "  cannot"  insert  "  ,  if  he  be  negligent  in  this  respect,". 
43.    End  of  note  4,  add  "  that  a  foreign  judgment  may  be  impeached  when  man- 
ifestly erroneous  by  the  lex  fori,  see  Meyer  v.   Ralli,  L.  R.   1    C.  P.  D. 
359." 
48.   End  of  first  note,  add,  "  That  non-service  of  writ  may  not  be  fatal  where  the 
defendant  impliedly  waives  service,  see  Copin  v.  Alexander,  L.  R.  1  Ex. 
D.  85 ;  aff.  Ct.  of  Appeals,  S.  C.  24  W.  R.  85." 
62.    End  of  note  1,  add,  "  As  to  limits  of  judgments  in  rem,  see  Meyer  v.  Ralli, 

L.  R.  1  C.  P.  D.  359." 
87.    1st  column,  10th  line  from  bottom,  for  "  §  867  "  read  "  §  868." 

115.   Marginal  note,  for  "  takes"  read  "  take." 

149.   Note  5,  for  "  Hatcher"  read  "  Hedges." 

188.  Last  note,  for  "  Fenton  "  read  "  Denton." 

199.   Last  note,  for  "  Petburgh  "  read  "  Retburgh." 

256.    To  note  8  add,  "  As  to  parol  proof  of  non-delivery,  or  non-execution  of  con- 
tracts, see  supra,  §§  926-935." 

373.   Last  line,  strike  out  "  ordinarily." 

405.  Line  4,  for  "  admission  "  read  "  admissions." 

419.   In  marginal  note,  for  "admission  "  read  "  admissions." 

443.   Line  10,  for  "  praesumtionis  "  read  " praesumtiones." 

456.   5th  line  from  bottom,  for  "  guilty  "  read  "  innocent." 

462.   8th  line  from  bottom,  for  "  no  "  read  "  not." 

462.   In  last  lines,  for  "  praesumptio  "  read  "  praesitmtio." 

498.    Line  3,  before  "  father  "  insert  "  alleged." 

506.   Note  4,  for  "  Closmedenc  "  read  "  Closmadenc." 


BOOK  I. 


EEQUISITES  OF  PROOF. 


CHAPTER  I. 


PEELIMINAKY  CONSIDERATIONS. 


Proof  is  the  suflScient  reason  for  a  proposi- 
•  tion,  §  1. 
Formal  proof  to  be  distinguished  from  real, 

§2. 
Evidence  is  proof  admitted  on  trial,  §  3. 
Object  of  evidence  is  juridical  conviction, 

Formal  proof  should  be  expressive  of  real, 
§5. 


Analogy  is  the  true  logical  process  in  jurid- 
ical proof,  §  6. 

Proof  to  be  distinguished  from  demonstra- 
tion, §  7. 

Fallacy  of  distinction  between  direct  and 
circumstantial  evidence,  §  8. 

Juridical  value  of  hypothesis,  §  12. 

Facts  cannot  be  detached  from  opinion, 
§15. 


1.  Nature  of  Proof  . 

§  1.  Proof  is  logically  defined  as  the  sufficient  reason  (ratio 
sufficient)  for  assenting  to  a  proposition  as  true.  A  j.  ^ 
proposition  is  a  statement  which  does  not  contain  in   sufficient 

...  .  .         .    .1  reason  for 

itself  sufficient  proof  of  its  truth.     Proof,  in  civil  proc-   aproposi- 
ess,  is  a  sufficient  reason  for  the  truth  of  a  juridical 
proposition  by  which  a  party  seeks  either  to  maintain  his  own 
claim  or  to  defeat  the  claim  of  another. 

§  2.  The  truth  on  which  a  juridical  proposition  depends  is 
styXiidi.  formal  as  distinguished  from  real.    It  is  true,  that 
the  obiect  of  all  sound  jurisprudence  is  to  render  formal   truth  to  be 

.  .  distin- 

truth  as  far  as  possible  the  reflex  of  real.     But  this  re-  guished 
suit  can  be  only  approximately  reached.     Apart  from     "^""^  ^'^ 
the  general  consideration  that  no  witness  can  detail  with  perfect 
accuracy  that  which  he  has  seen,  and  that  (from  the  inadequacy 

VOL.   I.  1  1 


§  3.]  THE  LAW   OF   EVIDENCE.  [BOOK  I. 

of  language),  no  written  instrument  can  be  framed  which  can  ex- 
clude all  doubt  as  to  the  intention  of  the  parties,  cases  must  fre- 
quently arise  in  which  an  adjudicating  tribunal  is  compelled  to  give 
a  formal  decision  which  conflicts  with  a  moral  conviction.  A 
statute,  for  instance,  prescribes  that  when,  in  a  criminal  trial,  a 
defendant  declines  to  be  sworn  on  his  own  behalf  as  a  witness, 
this  shall  not  be  regarded  as  a  presumption  against  him.  A  case 
may  be  of  such  a  character  that,  were  such  a  statute  not  in  force, 
the  refusal  by  the  defendant  to  avail  himself  of  a  means  of  ex- 
planation which  the  law  gives  him,  would  turn  the  scales  against 
him.  But  the  statute  forbids  the  application  of  such  a  presump- 
tion ;  and  the  case  has  to  be  decided  precisely  as  if  the  defendant 
had  no  opportunity  of  giving  exculpatory  testimony.  So  a  con- 
fession by  the  defendant,  made  to  counsel,  may  reach  the  court 
and  jury ;  and  such  testimony  may  be  even  received  as  evidence, 
and  may  be  morally  conclusive  as  to  the  defendant's  guilt ;  but 
should  the  court,  convinced  of  the  error  of  receiving  the  testi- 
mony, direct  it  to  be  stricken  out,  the  case  must  be  decided  as  if 
the  testimony  had  never  been  rendered. 

§  3.  So  far  as  concerns  the  use  to  be  made  of  the  terms  in  the 
Evidenceis  present  treatis9,  "  proof  "  has  a  far  wider  meaning  than 
mitted  on  "  evidence."  Evidence  includes  the  reproduction,  be- 
triai.  fQj.Q   ^]jQ   determining    tribunal,  of    the  admissions    of 

parties,  and  of  facts  relevant  to  the  issue.  Proof,  in  addition,  in- 
cludes presumptions  either  of  law  or  fact,  and  citations  of  law.^ 
Proof,  in  this  sense,  comprehends  all  the  grounds  on  which  rests 
assent  to  the  truth  of  a  specific  proposition.  Evidence,  in  this 
view,  is  adduced  only  by  the  parties,  through  witnesses,  docu- 
ments, or  inspection  ;  proof  may  be  adduced  by  counsel  in  argu- 
ment, or  by  the  judge  in  summing  up  a  case.  The  distinction 
is  constantly  noticed  in  the  Roman  standards ;  though  both 
senses  are  assigned  to  the  word  prohare.  Occasionally,  indeed, 
we  find  implere  used  as  convertible  with  prohare,  in  the  sense  of 
putting  in  evidence.  (See  L.  19  ;  L.  23,  D.  de  prob.)  As 
other  equivalent  expressions  may  be  noticed,  ostendere,  adprobare, 
fidem  facer e  rei  alicuius,  monstare?  In  the  Roman  jurists,  in 
fact,  we  may  find  three  distinct  meanings  of  the  word  "  proof  ;  " 

^  See  Harvey  v.  Smith,  17  Ind.  ^  Weber,  Heffter's  ed.  4;  Brisson, 
272.  de  V.  S.  vv. 

2 


CHAP.  I.]  PRELIMINARY   CONSIDERATIONS.  [§  3. 

each  of  wliicli  meanings  is  recognized  in  our  own  jurisprudence. 
First,  Proof  may  be  used  in  the  wide  sense,  just  noticed,  of  the 
reasons  or  grounds  on  which  a  particuhir  proposition  may  be 
maintained.  Tlius  counsel  may  say,  "  This  point  you  may  con- 
sider as  fully  proved ;  "  and  hence,  also,  the  common  division 
of  proofs  into  complete  and  incomplete. ^  In  this  sense,  also, 
we  speak  of  invalid  proofs,  falsis  prohationibus ;  and  of  proofs 
tending  to  a  particular  conclusion,  prohationes  ad  jidem  facien- 
dam  idoneae ;  though  the  proofs  in  each  case  may  be  weak  or 
strong,  logical  or  illogical,  true  or  false.  Secondly.  In  a  more 
narrow  and  arbitrary  sense.  Proof  may  be  used  as  convertible 
with  Conviction,  and  as  producing  conclusions  as  to  which  there 
can  be  no  doubt.  Thirdly.  Proof  may  be  received  in  its  for- 
mal and  juridical  sense,  as  the  instrument  which  tends  to  lead 
the  minds  of  judge  or  jury  to  a  particular  conclusion.  Proof 
in  this  sense  is  to  be  regarded  not  as  an  instrument  to  pro- 
duce mathematical  or  even  moral  certainty,  —  not  as  a  means 
of  convincing  the  opposing  party,  —  not  even  as  a  means  of 
working  a  moral  conviction  in  the  minds  of  judge  or  of  jury  ; 
but  as  a  means  of  bringing  them  to  such  an  official  or  juridical 
conviction  as  will  require  from  them  a  particular  legal  action. 

^  Mr.  Fitzjamcs    Stephen,   in   the  cepted  to  not  only  as  involving  a  con- 

■'  Definition  of  Terms,"  which  is   the  tradiction,  but  as  making  tlie  judge's 

introduction    to   his    Digest    of  Evi-  decision   tlie    final   test  of   evidence, 

dence,  tells  us  that  "  Evidence  means  when,  in  practice,   judges  may,   and 

(1.)   All  statements  which  the  judge  actually  do,  decide  wrong.     The  fol- 

permits  or  requires  to  be  made  by  wit-  lowing  definition  is  proposed  as  a  sub- 

nesses  in  court,  in  relation  to  matters  stitute  for  Mr.   Stephen's,   so   far  as 

of  fact  under  inquiry  ;  concerns  evidence  not  documentary  : 

"  Such  statements  are  called  oral  "  Evidence    means    (I.)    Statements 

evidence  :  made  by  witnesses   before    the  court 

"(2.)   All  documents  produced  for  in   relation  to  matters  of   fact  under 

the  inspection  of  the  court  or  judge;  inquiry;    such  statements   are  called 

"  Such  documents  are  called  docu-  oral  evidence.     (2.)   Statements  made 

mentary  evidence."  by  witnesses  in  relation  to  matters  of 

To   this   definition    a  critic   in   the  fact  under  inquiry  before  persons  au- 

Solicitor's  Journal  for  September  2,  thorized  by  law  to  take  aflidavits,  af- 

1876,   objects    that    it  excludes    not  firmations,  and  depositions  to  be  used, 

only  affidavits,  on  which  cases  arc  frc-  or  which  may  be  used,  on  the  hearing 

(juently  tried,   but  depositions.     The  of  such    matters   by  the  court;    such 

(jualification,  "which  the  judge  per-  statements  are  called  evidence  on  dep- 

mits  or  suffers  to  be  read,"  is  also  ex-  ositiou.'' 


§  4.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

In  this  sense,  the  only  one  in  which  we  have  here  to  consider  the 
term  Proof,  the  distinction  between  Proof  and  Evidence  becomes 
the  more  clear.  Evidence  is  a  part,  and  only  a  small  part  of 
Proof.  It  is  part  of  the  material  on  which  Proof  acts  ;  it  is  not 
reason,  but  a  part  of  the  basis  of  reason.  It  is  therefore  such 
juridical  admissions,  and  such  reproduction  of  relevant  facts,  as, 
under  due  check  of  law,  may  be  received  on  the  trial  of  a  liti- 
gated issue. 

§  4.  Hence  it  is  important  at  the  outset  to  lay  firm  hold  of  the 
Object  of  principle  that  what  is  required  in  the  trial  of  an  issue 
?uridicai  '^  ^^  juridical  (Veritas  juridica,  forensis'),  as  distinguished 
conviction,  from  moral  truth.  The  dangers  which  would  flow  from 
an  obliteration  of  this  distinction  are  obvious.  I  may  have,  for 
instance,  as  a  judge,  a  moral  conviction  of  the  guilt  of  a  de- 
fendant on  trial.  He  may  have  confessed  his  guilt  to  me  in  a 
way  -which  leaves  no  doubt  as  to  his  sincerity ;  or  I  may  have 
learned  from  persons  not  called  as  witnesses  facts  which  make 
his  complicity  unquestionable.  This,  however,  is  not  to  be  per- 
mitted to  have  the  slightest  effect  on  my  juridical  reasoning  ; 
for,  even  though  the  man  be  really  guilty,  to  punish  him  with- 
out juridical  certainty  of  his  guilt  would  be  recognizing  a  princi- 
ple fatal  to  public  justice.  Let  it  once  be  admitted  that  moral 
conclusions  as  to  a  case  are  to  be  substituted  for  juridical,  and 
then,  in  the  breasts  of  judges  as  well  as  of  juries,  prejudices,  de- 
structive of  all  social  stability,  will  determine  the  results  of  litiga- 
tion. The  plaintiff  -is  a  bad  man,  and  the  money,  if  he  recovers 
it,  would  be  badly  spent ;  or  he  belongs  to  a  political  or  religious 
party  which  it  is  important  to  suppress  ;  or  he  has  acted  fraudu- 
lently or  oppressively  in  so  many  other  matters  that  it  may  be 
inferred  that  he  acted  fraudulently  or  oppressively  in  those  un- 
der investigation ;  and  hence  he  should  not  succeed.  Or  the 
defendant  is  a  rich  man,  and  will  not  feel  the  loss  if  a  judgment 
be  entered  against  him  ;  or  he  belongs  to  a  dangerous  class  ;  or 
his  antecedents,  though  those  are  not  in  evidence  against  him, 
make  it  probable  that  he  is  in  the  wrong  ;  and  hence  he  should 
lose  the  suit.  If  side  considerations,  such  as  these,  are  to  be  re- 
ceived to  affect  the  judgment  of  court  or  jury,  then  such  con- 
siderations would  be  multiplied  indefinitely,  and  there  would  be 
no  case  tried  in  which  some  prejudice,  popular  or  personal,  on 
4 


CHAP.  I.]  PRELIMINARY   CONSIDERATIONS.  [§  5. 

the  part  of  the  adjudicating  tribunal,  would  not  be  seized  upon 
as  a  pretext  on  which  the  result  would  be  made  to  hang.  Hence 
it  is  that  all  civilized  jurisprudences  have  imposed  with  peculiar 
solemnity  rules  to  distinguish  between  juridical  and  moral  evi- 
dence ;  and  have  bound  judges  and  jurors  by  oath  to  decide 
cases  solely  on  juridical  grounds.  Even  in  respect  to  Proof, 
using  the  term  Proof  in  its  wide  sense  as  distinguished  from  Evi- 
dence, the  office  of  the  judge  has  been  for  the  same  reason  closely 
defined.  In  reasoning  upon  evidence,  it  is  true,  he  is  entitled  to 
fall  back  on  the  ordinary  course  of  events,  and  to  reach,  from  facts 
put  in  evidence,  inductive  conclusions,  based  on  the  common  ex- 
perience of  nature  and  of  society.  Under  this  head  fall  the  con- 
clusions from  circumstantial  evidence  ;  prohatio  artificialis.  Cer- 
tain, indeed,  of  these  conclusions  are  so  compulsory  as  to  ap- 
proach mathematical  certainty.  A  man,  for  instance,  cannot  be 
in  two  places  at  exactly  the  same  moment  of  time  ;  and  a  judge 
has  a  right  to  say,  that  assuming  it  to  be  true  (which,  however, 
is  a  point  dependent  upon  the  accuracy  and  honesty  of  wit- 
nesses), that  A.,  at  a  particular  moment,  was  in  the  city  of  B., 
he  could  not,  at  the  same  moment,  have  been  in  the  city  of  C. 
A  fortiori  is  this  the  case  with  natural  laws.  Where  no  con- 
clusive law  of  this  class  can  be  invoked,  the  law,  in  certain  spe- 
cified cases,  .establishes,  for  the  purpose  of  limiting  the  range  of 
judicial  decision,  certain  presumptions,  which  the  judge  is  bound 
to  accept,  either  as  irrebuttable  (g.  g.  that  all  subjects  know  the 
laws  of  their  own  country,  and  that  an  infant  under  seven  is  not 
capax  doli},  or  as  rebuttable  (e.  g.  that  of  regularity  in  business 
transactions,  naturalia  negotii ;  that  of  innocence  in  parties  ac- 
cused, and  that  of  sanity  among  persons  arrived  at  years  of  dis- 
cretion). In  all  matters  of  reasoning  which  are  not  so  limited, 
the  determining  tribunal  is  at  liberty,  as  hereafter  will  be  more 
fully  seen,  to  draw  from  the  evidence  in  the  case  such  conclu- 
sions of  fact  as  are  consistent  with  sound  logic.  But  no  evidence 
(guarding  the  term  by  the  limitations  hereafter  more  fully  ex- 
pressed)^ which  is  not  admitted  on  the  trial  is  to  be  permitted 
by  that  tribunal  to  influence  its  conclusions. 

§  5.  That   there   is    absolute    truth,    as   to    all   controverted 
issues,  is  conceded  in  jurisprudence,  as  in  all  other  moral  sci- 
1  See  infra,  §  276  e<  seq. 

5 


§  5.]  .  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

ences.  It  is  at  the  same  time  conceded  that  such  truth  can  be 
Formal  reached  by  us,  from  the  limitation  of  our  faculties,  not 
should  be  objectively,  as  it  really  exists,  but  subjectively,  as  it 
^\o  ^^F^°'  ^^J  ^6  made  to  appear  to  ourselves.  In  what  way  we 
real-  can  arrive  at  the  most  accurate  conception  of  such  truth 

is  the  object  of  the  science  of  jurisprudence.     Certain  processes, 
e.  g.  those  dependent  upon  logic,  and  on  a  priori  conceptions,  it 
uses  in  common   with  all  other  sciences.     So  far,  however,  as 
concerns  the  proof  of  facts  on  which  its  judgments  are  to  rest,  it 
requires  that  such  proof  should  be  offered  in  subordination  to  cer- 
tain established  juridical  rules.    It  is  not  enough  that  the  adjudi- 
cating tribunal  should  be  convinced  of  the  truth  of  such  facts ; 
such  conviction  must  be  worked  by  legal  evidence  legally  admitted 
on  trial.     Truth  thus  reached  is  styled  formal^  as  distinguished 
from  real.     It  must  be  remembered,  however,  that  the   term 
"  formal "  truth  admits  of  several  shades.     It  may,  in  its  nar- 
rowest sense,  be  viewed  as  including  only  such  truth  as  is  actu- 
ally proved  by  evidence  offered  in  the  case.     In  its  widest  sense, 
it  includes  not  only  such  truth  so  proved,  but  all  reasonable  in- 
ferences from  such  truth ;  and  it  assumes,  as  part  of  such  truth, 
without  requiring  proof  of  the  same,  such  conclusions  of  expe- 
rience and  of  physical  and  social  science,  as  are  within  the  or- 
dinary knowledge  of  intelligent  men  of  the  time  and  place.     It 
will  be  seen  that  formal  truth,  viewing  it  in  this  enlarged  sense, 
approaches  as  nearly  to  real  truth,  as  a  sound  policy  will  permit. 
If,  dismissing  the  last  relics  of  the  old  rules  of  special  pleading, 
the  parties  are  permitted  to  present  issues  which  will  embrace 
all  of   their  respective  cases;   if   they  are  permitted  to  intro- 
duce all  evidence,  not  excluded  by  sound  rules  of  policy,  which 
is  relevant  to  such  issue ;  if  the  adjudicating  tribunal  is  empow- 
ered, subject  to  such  rules  of  policy,  to  determine  the  case  on 
such  evidence,  by  the  aid  of  a  free  logic  and  of  an  enlightened 
acquaintance  with  the  ordinary  laws  of  sociology  and  physical 
science,  then  formal  truth  will  coincide,  so  far  as  such  coincidence 
is  just  and  practical,  with  real  truth.    This  end  our  Anglo-Amer- 
ican legislation  has  for  years  been  struggling  to  reach,  seeking  to 
throw  off  the  restrictions  of  scholastic  jurisprudence,  —  a  juris- 
prudence which  first  by  subtle  rules  of  pleading,  compelled  much 
that  is  material  to  be  excluded  from  the  issue,  and  then,  when  the 
6 


CHAP.  I.]  PRELIMINARY   CONSIDERATIONS.  [§  6. 

issue  was  thus  arbitrarily  narrowed,  shut  out  much  evidence  that 
was  relevant,  and  attached  to  the  evidence  received  certain  arbi- 
trary valuations  which  the  courts  were  required  to  apply.  These 
restrictions,  so  far  as  they  involve  mutilating  of  issues  by  special 
pleading,  have  been  now  virtually  abrogated  by  the  rules  of  most 
of  our  courts,  and,  so  far  as  concerns  the  excluding  of  all  witnesses 
interested  in  a  case,  they  have  recently,  both  in  England  and  in 
the  United  States,  been  removed  by  statute.  So  far  as  concerns 
the  arbitrary  valuation  assigned  to  evidence  when  received,  the 
scholastic  subtleties  were,  with  a  single  exception,  not  accepted 
in  England.  The  exception  to  which  I  refer  is  the  assignment 
of  various  degrees  of  probative  force  to  presumptions ;  producing 
tliereby  an  artificial  system  of  .formal  as  distinguished  from  real 
truth.  This  system  is  now  in  some  of  its  branches  destroyed  by 
statute  ;  in  others,  as  will  hereafter  be  more  fully  shown,  it  is  so 
modified  by  the  courts  as  to  leave  of  it  little  except  a  name. 
Supposing,  as  is  assumed,  the  object  of  jurisprudence,  which  these 
changes  have  in  view,  is  to  make  formal  truth  the  expression  of 
real,  then  it  may  now  be  well  maintained  that  this  object  has 
been  in  a  great  measure  achieved.  But  the  work  has  been  done 
by  processes  which  leave  a  large  part  of  our  earlier  text  books 
without  value,  and  which  require  the  discussion  of  several  impor- 
tant principles  of  which  it  was  not  necessary  for  those  text  books 
to  treat.  The  discussion  of  these  principles,  in  connection  with 
others  which  contribute  to  constitute  the  law  as  it  really  is,  it  is 
the  object  of  the  present  work  to  undertake.    . 

§  6.  The  true  logical  process,  in  juridical  as  well  as  in  historical 
reasoning,  is  imperfect  induction,  or  analog}'.^     "  The    Analogy 
inference  of  analogy  is  an  inference  from  particulars  or   logical^ 
individuals  to  a  coordinate  particular  or  individual.     Its   ^j^J!i''ji^''J° 
scheme  is  the  following :  —  •  P"""^"^- 

M  is  P. 
■*•  S  is  similar  to  M. 


S  is  P. 


Or  more  definitely,  since  it  also  gives  that  in  which  the  similar- 
ity consists,  the  following  :  — 

^  See     this     lucidly    explained    in    Ueberweg's  Logic,    Lindsay's    trans- 
lation, §131. 


§  7.]  THE  LAW   OF  EVIDENCE.  [BOOK  I. 

M  is  P. 
M  is  A. 

S  is  A. 

S  is  P. 

"  In  so  far  as  the  logical  connection  between  S.  and  P.  is  un- 
certain in  Imperfect  Induction  or  Analogy,  the  conclusion  has 
only  a  problematic  validity.  If  the  reasons  for  its  existence 
are  of  more  weight  than  the  reasons  against,  the  conclusion  has 
probability  (^prohahilitas).  If  an  attempt  be  made  to  define 
more  closely  the  different  degrees  intermediate  between  the  com- 
plete certainty  of  the  conclusion  and  the  certainty  of  its  contra- 
dictory opposite,  the  term  probability  is  also  used  in  a  wider 
sense  as  the  common  name  for  the  whole  of  these  degrees.  The 
degree  of  probability  in  this  sense  admits  in  certain  cases  of 
mathematical  determination,  which  may  have  not  only  probability 
but  also  certainty.  When  different  analogies,  some  of  which 
point  to  the  conclusion  and  the  others  to  its  contradictory  oppo- 
site, are  in  general  alike  applicable,  the  degree  of  probability 
may  be  represented  mathematically  as  a  fraction,  whose  numer- 
ator is  formed  by  the  number  of  cases  for,  and  its  denominator 
by  the  number  of  cases  compared.  So  far  as  the  different  analo- 
gies differ  in  the  degree  of  the  possibility  of  their  finding  appli- 
cation, a  mathematical  determination  of  the  degree  of  probabil- 
ity is  generally  impossible.  In  this  case  a  less  exact  valuation  of 
the  degree  of  probability  may  be  arrived  at,  which  can  lay  claim 
to  probability  only,  not  to  certainty.  This  kind  of  valuation  of 
the  degree  of  probability  is  commonly  called  the  philosophical  in 
opposition  to  the  mathematical,  but  more  correctly  the  dynamic, 
in  so  far  as  it  depends  upon  the  relative  consideration  of  the  in- 
ternal force  of , 'the  causes  for  and  against."  ^ 

§  7.  The  fallacy  which  underlies  the  confusion  of  "  demon- 
stration "  with  "  proof "  may  require  a  more  technical  expo- 
sition.    "  Demonstration "  is  a  conclusion   drawn  from  a  uui- 

^  Ueberweg's    System    der    Logik,  Formal  Logic,  or  Calculus  of  Infer- 

Bonn,  1857,  §  132.     I  have  consulted  ence,  Necessary  and  Probable,  pp.  170- 

Lindsay's  translation  in  the  above  ren-  210  ;  and  Boole's  Laws  of  Thought, 

dering.     Mr.  Lindsay  refers  to  Mill's  pp.  243-399. 
Logic,  ii.   p.   122,  if.  ;   De   Morgan's 

8 


CHAP.  I.] 


PRELIMINARY  CONSIDERATIONS. 


[§T. 


versal  major  premise,  producing  absolute  certainty ;  "  proof " 
is  the  conclusion  drawn  from  a  particular  major  pre- 
mise, producing  probable  certainty.  Thus  we  say  all 
A  is  B  ;  C  is  A,  therefore  C  is  B.  Or,  all  islands 
are  surrounded  by  water ;  C  is  an  island,  therefore 
C  is  surrounded  by  water.     The  formula  is  thus  illustrated :  — 


"Proof" 
to  be  dis- 
tinguished 
from 
"demon- 
stration." 


This  is  demonstration,  and  admits  of  no  degrees  of  certainty, 
being  necessarily  true.  On  the  other  hand,  "  proof,"  in  the  sense 
in  which  the  term  is  here  used,  is  a  conclusion  drawn  from  a  par- 
ticular major  premise,  and  admits  of  various  degrees  of  certainty, 
as  will  be  illustrated  by  the  following  figures  :  — 


I. 


II. 


III. 


Supposing  A  represents  those  of  the  above  circles  drawn  in  dots, 
and  B  those  drawn  in  continuous  lines,  then  the  major  premise, 
"  some  A  is  B,"  will  enable  us  only  to  support  a  probable  conclu- 
sion as  to  C,  unless  we  know  in  what  part  of  A  C  happens  to 
fall.  In  other  words,  we  may  say  "  some  of  the  railroad  invest- 
ments made  before  the  panic  of  1872  have  proved  worthless  ;  A. 
made  certain  investments  in  railroads  prior  to  such  panic  ;  there- 
fore there  is  a  probability  that  some  of  these  investments  made 
by  A.  have  proved  worthless."  It  is  obvious  that  the  conclusion 
is  one  admitting  of  various  degrees  of  probability.  Thus  we 
may  say  "  xV  ^^  B  is  A  ;  C  is  B  ;  therefore  it  is  9  to  1  that  C  is 

9 


§7.] 


THE   LAW   OF  EVIDENCE. 


[book  I. 


A."  ^  But  in  no  case  involving  moral  judgment  are  we  able  to 
exclude  all  possibility  of  the  contrary  ;  in  other  words,  in  no 
case  involving  moral  judgment  are  we  able  to  assert  absolutely 
a  universal  affirmative  or  a  universal  negative.^ 


^  See  Ingram  v.  Flasket,  3  Blackf. 
450  ;  Crabtrce  v.  Reed,  50  111.  206. 

*  "  The  phrase,  '  moral  certainty,' 
has  been  introduced  into  our  jurispru- 
dence from  the  publicists  and  meta- 
physicians, and  signifies  only  a  very 
high  degree  of  probability.  It  was 
observed  by  Pufendorf,  that  '  When 
we  declare  such  a  thing  to  be  morally 
certain,  because  it  has  been  confirmed 
by  credible  witnesses,  this  moral  cer- 
titude is  nothing  else  but  a  strong  pre- 
sumption grounded  on  probable  rea- 
sons, and  which  very  seldom  fails  and 
deceives  us.'  Law  of  Nature  and 
Nations  (Eng.  ed.  1749),  book  i.  c. 
2,  §  11.  '  Probable  evidence,'  says 
Bishop  Butler,  in  the  opening  sentence 
of  his  Analogy,  '  is  essentially  dis- 
tinguished from  demonstrative  by  this, 
that  it  admits  of  degrees,  and  of  all 
variety  of  them,  from  the  highest 
moral  certainty  to  the  very  lowest 
presumption.' 

"  Proof  '  beyond  a  reasonable  doubt ' 
is  not  beyond  all  possible  or  imaginary 
doubt,  but  such  proof  as  precludes 
every  reasonable  hypothesis  except 
that  which  it  tends  to  support.  It  is 
proof  '  to  a  moral  certainty,'  as  dis- 
tinguished from  an  absolute  certainty. 
As  applied  to  a  judicial  trial  for  crime, 
the  two  phrases  are  synonymous  and 
equivalent ;  each  has  been  used  by 
eminent  judges  to  explain  the  other  ; 
and  each  signifies  such  proof  as  sat- 
isfies the  judgment  and  consciences 
of  the  jury,  as  reasonable  men,  and 
applying  their  reason  to  the  evidence 
before  them,  that  the  crime  charged 
has  been  committed  by  the  defendant, 
and  so  satisfies  them  as  to  leave  no 
other  reasonable  conclusion  possible." 

10 


Gray,  C.  J.,  Commonwealth  v.  Cost- 
ley,  118  Mass.  21. 

"  Probable  evidence  is  essentially 
distinguished  from  demonstrative  by 
this,  that  it  admits  of  degrees,  and 
of  all  variety  of  them,  from  the  high- 
est moral  certainty  to  the  very  lowest 
presumption.  We  cannot,  indeed, 
say  a  thing  is  probably  true  upon  one 
very  slight  presumption  for  it;  be- 
cause, as  there  may  be  probabilities 
on  both  sides  of  a  question,  there  may 
be  some  against  it ;  and  though  there 
be  not,  yet  a  slight  presumption  does 
not  beget  that  degree  of  conviction 
which  is  implied  in  saying  a  thing  is 
probably  true.  But  that  the  slightest 
possible  presumption  is  of  the  nature 
of  a  probability,  appears  from  hence  ; 
that  such  low  presumption,  often  re- 
peated, will  amount  even  to  moral 
certainty.  Thus  a  man's  having  ob- 
served the  ebb  and  flow  of  the  tide 
to-day,  affords  some  sort  of  presump- 
tion, though  the  lowest  imaginable, 
that  it  may  happen  again  to-morrow  ; 
but  the  observation  of  this  event  for 
so  many  days,  and  months,  and  ages 
together,  as  it  has  been  observed  by 
mankind,  gives  us  a  full  assurance 
that  it  will. 

"  That  which  chiefly  constitutes 
Probability  is  expressed  in  the  word 
Likely  ;  i.  e.  like  some  truth,  or  true 
event ;  like  it,  in  itself,  in  its  evidence, 
in  some  more  or  fewer  of  its  circum- 
stances. For  when  we  determine  a 
thing  to  be  probably  true,  suppose 
that  an  event  has  or  will  come  to  pass, 
it  is  from  the  mind's  remarking  in  it 
a  likeness  to  some  other  event  which 
Ave  have  observed  has  come  to  pass. 
And  this  observation  forms,  in  num- 


CHAP.  I.] 


PRELIMINARY   CONSIDERATIONS. 


[§8. 


§  8.  A  distinction  is  frequently  made  between  direct  and  circum- 
stantial evidence,  and  it  is  intimated  that  to  each  there 
is  a  distinctive  degree  of  jarobability  to  be  assigned. ^     It 
is  difficult,  however,  to  see  how  what  is  called  "  circum- 
stantial "  or  "  indirect "  evidence  differs  in  kind  from 


Fallacy  of 
distinction 
between 
"direct" 
and  "cir- 
cumstan- 
tial "  evi- 

direct,  however  great  may  be  the  difference  as  to  the    dence. 


berless  daily  instances,  a  presumption, 
opinion,  or  full  conviction,  that  such 
event  has  or  will  come  to  pass  ;  ac- 
cording as  the  observation  is,  that  the 
like  event  has  sometimes,  most  com- 
monly or  always,  so  far  as  our  obser- 
vation reaches,  come  to  pass  at  like 
distances  of  time,  or  place,  or   upon 


some  day  of  the  month ;  and  that 
there  is  a  moral  certainty,  i.  e.  ground 
for  an  expectation,  without  any  doubt 
of  it,  in  some  part  or  other  of  the 
winter. 

"  Probable  evidence,  in  its  very  nat- 
ure, affords  but  an  imperfect  kind  of 
information,  and  is  to  be  considered 


like  occasions.     Hence  arises  the  be-  as  relative  only  to  beings  of  limited 

lief  that   a  child,  if   it  lives   twenty  capacities.     For  nothing  which  is  the 

years,  will  grow  up  to  the  stature  and  possible  object  of  knowledge,  whether 

strength  of  a  man  ;  that  food  will  con-  past,  present,  or  future,  can  be  proba- 

tribute  to  the  preservation  of  its  life,  ble  to  an  infinite  intelligence ;  since  it 

and   the  want  of  it  for  such  a  number  cannot  but  be  discerned  absolutely  as 

of    days    be   its   certain    destruction,  it  is  in   itself,  certainly  true,   or  cer- 

So  likewise  the  rule  and  measure  of  tainly  false.     But  to  us  probability  is 

our  hopes  and  fears  concerning  the  sue-  the  vei-y  guide  of  life, 

cess  of  our  pursuits;  our  expectations  "From  these  things  it  follows,  that 

that  others  will  act  so  and  so  in  such  in  questions  of  difficulty,  or  such  as 

circumstances  ;  and  our  judgment  that  are  thought  so,  where  more  satisfac- 

such  actions  proceed  from   such  prin-  tory  evidence  cannot  be  had,  or  is  not 


ciples  ;  all  these  rely  upon  our  having 
observed  the  like  to  what  we  hope, 
fear,  expect,  judge  ;  I  say,  upon  our 
having  observed  the  like  either  with 
respect  to  others  or  ourselves.     And 


seen  ;  if  the  result  of  examination  be, 
that  there  appears  upon  the  whole, 
any  the  lowest  presumption  on  one 
side,  and  none  on  the  other,  or  a 
greater    presumption    on     one     side, 


thus,  whereas  the  prince  who  had  al-     though  in  the  lowest  degree  greater; 


ways  lived  in  a  warm  climate  natu- 
rally concluded,  in  the  way  of  anal- 
ogy, that  there  was  no  such  thing  as 
water's  becoming  hard,  because  he 
had  always  observed  it  to  be  (luid  and 
yielding  ;  we,  on  the  contrary,  from 
analogy,  conclude,  that  there  is  no 
presumption  at  all  against  this;  that 
it  is  supposable  there  may  be  frost  in 


this  determines  the  question,  even  in 
matters  of  speculation ;  and  in  matters 
of  practice  will  lay  us  under  an  abso- 
lute and  formal  obligation,  in  point  of 
prudence  and  of  interest,  to  act  upon 
that  presumption  or  low  probability, 
though  it  be  so  low  as  to  leave  the 
mind  in  very  great  doubt  which  is  the 
truth.     For  surely  a  man  is  as  really 


England   any  given   day  in   January     bound   in  prudence  to  do  what  upon 
next ;    probable  that  there    will    on     the  whole  appears,  according  to  the 

^  See  Greenleaf's  Ev.  §  13  et  seq. ;  Taylor's  Ev.  §  56  et  seq.;  Best's  Ev. 
§  25.     See,  also,  infra,  §  509. 

11 


§8.] 


THE  LAW   OF  EVIDENCE. 


[book  I. 


intensity  of  the  proof  afforded.  There  is  no  testimony  that  is 
direct,  if  we  mean  by  direct  an  immediate  presentation  of  a  fact 
observed.  Mathematical  demonstration  might  be  called  direct ; 
but  mathematical  demonstration  is  not  evidence  in  the  juridical 
For  juridical  evidence  is  evidence  of  mutable  phenomena 


sense. 


through  human  agency  addressed  to  a  human  tribunal ;  and  both  as 


best  of  bis  judgment,  to  be  for  bis 
happiness,  as  wbat  be  certainly  knows 
to  be  so.  Nay,  furtber,  in  questions 
of  great  consequence,  a  reasonable 
man  will  tbink  it  concerns  bim  to  re- 
mark lower  probabilities  and  presump- 
tions tban  tbese;  sucb  as  amount  to 
no  more  than  showing  one  side  of  a 
question  to  be  as  supposable  and  cred- 
ible as  the  other;  nay,  such  as  but 
amount  to  much  less  even  tban  this. 
For  numberless  instances  might  be 
mentioned  respecting  the  common  pur- 
suits of  life,  where  a  man  would  be 
thought,  in  a  literal  sense,  distracted, 
who  would  not  act,  and  with  great 
application  too,  not  only  upon  an  even 
chance,  but  upon  much  less,  and 
where  the  probability  or  chance  was 
greatly  against  bis  succeeding."  Bishop 
Butler,  Introduction  to  Analogy. 

"  Symbolical  notation,  then,  being 
the  perfection  of  the  syllogistic 
method,  it  follows  that,  when  words 
are  substituted  for  symbols,  it  will  be 
its  aim  to  circumscribe  and  stint  their 
import  as  much  as  possible,  lest  per- 
chance A  should  not  always  exactly 
mean  A,  and  B  mean  B;  and  to  make 
them  as  much  as  possible  the  calculi 
of  notions,  which  are  in  our  absolute 
power,  as  meaning  just  what  we  choose 
them  to  mean,  and  as  little  as  possible 
the  tokens  of  real  things,  which  are 
outside  of  us,  and  which  mean  we  do 
not  know  how  much,  but  so  much  cer- 
tainly as  may  run  away  with  us,  in 
proportion  as  we  enter  into  them,  be- 
yond the  range  of  scientific  manage- 
ment. The  concrete  matter  of  propo- 
sitions is  a  constant  source  of  trouble 

12 


to  syllogistic  reasoning,  as  marring 
the  simplicity  and  perfection  of  its 
process.  Words,  which  denote  things, 
have  innumerable  implications,  but  in 
inferential  exercises  it  is  the  very 
triumph  of  that  clearness  and  hard- 
ness of  head,  which  is  the  characteris- 
tic talent  in  the  art,  to  have  stripped 
them  of  all  these  connatural  senses,  to 
have  drained  them  of  that  depth  and 
breadth  of  associations  which  consti- 
tute their  poetry,  their  rhetoric,  and 
their  historical  life,  to  have  starved 
each  term  down  till  it  has  become  the 
ghost  of  itself,  and  everywhere  one 
and  the  same  ghost,  '  omnibus  umbra 
locis,'  so  that  it  may  stand  for  just 
one  unreal  aspect  of  the  concrete  thing 
to  which  it  properly  belongs,  for  a  re- 
lation, a  generalization,  or  other  ab- 
straction, for  a  notion  neatly  turned 
out  of  the  laboratory  of  the  mind,  and 
sufficiently  tame  and  subdued  because 
existing  only  in  a  definition. 

"  Thus  it  is  that  the  logician  for  his 
own  purposes,  and  most  usefully  as 
far  as  those  purposes  are  concerned, 
turns  rivers,  full,  winding,  and  beau- 
tiful, into  navigable  canals.  To  him 
dog  or  horse  is  not  a  thing  which  he 
sees,  but  a  mere  word  suggesting 
ideas;  and  by  dog  or  horse  universal 
he  means  not  the  aggregate  of  all  in- 
dividual dogs  or  horses,  brought  to- 
gether, but  a  common  aspect,  meagre 
but  precise,  of  all  existing  or  possible 
dogs  or  horses,  which  at  the  same  time 
does  not  really  correspond  to  any  one 
dog  or  horse  out  of  the  whole  aggre- 
gate. Sucb  minute  fidelity  in  the 
representation  of  individuals  is  neither 


CHAP.  I.] 


PRELIMINARY   CONSIDERATIONS. 


[§ 


to  the  witnesses  and  the  things  to  which  they  testify,  credit  is  only 
given  on  probable  grounds.     This  probability  is  both  subjective, 


necessary  nor  possible  to  his  art ;  his 
business  is  not  to  ascertain  facts  in 
the  concrete,  but  to  find  and  to  dress 
up  middle  terms;  and,  provided  they 
and  the  extremes  which  they  go  be- 
tween are  not  equivocal,  either  in 
themselves  or  in  their  use,  supposing 
he  can  enable  his  pupils  to  show  well 
in  a  viva  voce  disputation,  or  in  a 
popular  harangue,  or  in  a  written  dis- 
sertation, he  has  achieved  the  main 
purpose  of  his  profession. 

"  Such  are  the  characteristics  of 
reasoning,  viewed  as  a  science  or 
scientific  art,  or  inferential  process, 
and  we  might  anticipate  that,  narrow 
as  by  necessity  is  its  field  of  view,  for 
that  reason  its  pretensions  to  be  de- 
monstrative were  incontrovertible.  In 
a  certain  sense  they  really  are  so ; 
while  we  talk  logic,  we  are  unanswer- 
able; but  then,  on  the  other  hand, 
this  universal  living  scene  of  things 
is  after  all  as  little  a  logical  world  as 
it  is  a  poetical;  and  as  it  cannot 
without  violence  be  exalted  into  po- 
etical perfection,  neither  can  it  be  at- 
tenuated into  a  logical  formula.  Ab- 
stract can  only  conduct  to  abstract; 
but  we  have  need  to  attain  by  our 
reasonings  to  what  is  concrete;  and 
the  margin  between  the  abstract  con- 
clusions of  the  science,  and  the  con- 
crete facts  which  we  wish  to  ascertain, 
will  be  found  to  reduce  the  force  of 
the  inferential  method  from  demon- 
stration to  the  mere  determination  of 
the  probable.  Thus,  since  (as  I  have 
already  said)  inference  starts  with 
conditions,  as  starting  with  premises, 
here  are  two  reasons  why,  when  em- 
ployed upon  matters  of  fact,  it  can 
only  conclude  probabilities:  first,  be- 
cause its  premises  are  assumed,  not 
proved;  secondly,  because  its  conclu- 
sions are  abstract,  and  not  concrete. 


I  will  now  consider  these  two  points 
separately."  Newman's  Gramma-  of 
Assent  (New  York,  1870),  255  et 
seq. 

"  This  is  true  of  other  inferences 
beside  mathematical.  They  come  to 
no  definite  conclusions  about  matters 
of  facts,  except  as  they  are  made  ef- 
fectual for  their  purpose  by  the  living 
intelligence  which  uses  them.  '  All 
men  have  their  price;  Fabricius  is  a 
man ;  he  has  his  price ; '  but  he  had 
not  his  price;  how  is  this?  Because 
he  is  more  than  a  universal ;  because 
he  falls  under  other  universals ;  be- 
cause universals  are  ever  at  war  with 
each  other ;  because  what  is  called  a 
universal  is  only  a  general;  because 
what  is  only  a  general  does  not  lead 
to  a  necessary  conclusion.  Let  us 
judge  him  by  another  universal.  '  Men 
have  a  conscience ;  Fabricius  is  a  man ; 
he  has  a  conscience.'  Until  we  have 
actual  experience  of  Fabricius,  we  can 
only  say,  that  since  he  is  a  man,  per- 
haps he  will  take  a  bribe,  and  perhaps 
he  will  not.  '  Latet  dolus  in  general- 
ibus;'  they  are  arbitrary  and  falla- 
cious, if  we  take  them  for  more  than 
broad  views  and  aspects  of  things 
serving  as  our  notes  and  indications 
for  judging  of  the  jjarticular,  but  not 
absolutely  touching  and  determining 
facts, 

"  Let  units  come  first,  and  (so-called) 
universals  second  ;  let  universals  min- 
ister to  units,  not  units  be  sacrificed  to 
universals.  John,  Richard,  and  Rob- 
ert are  individual  things,  independent, 
inconununicablc.  We  may  find  some 
kind  of  common  measure  between 
them,  and  we  may  give  it  the  name  of 
man,  man  as  such,  the  typical  man, 
the  auto-anthropos.  We  are  justided 
in  so  doing,  and  in  investing  it  with 
general  attributes,  and  bestowing  on 

18 


§8.] 


THE   LAW   OF  EVIDENCE. 


[book  I. 


as  to  the  witness,  and  objective  as  to  the  thing  testified  to ;  in 
other  words,  in  order  to  accept  the  truth  of  a  statement  of  a  wit- 


it  what  "we  consider  a  definition.  But 
we  go  on  to  impose  our  definition  on 
the  whole  race,  and  to  every  member 
of  it,  to  the  thousand  Johns,  Rich- 
ards, and  Roberts  who  are  found  in 
it.  Each  of  them  is  what  he  is,  in 
spite  of  it.  Not  any  one  of  them  is 
man,  as  such,  or  coincides  with  the 
auto-antliropos.  Anotlier  John  is  not 
necessarily  rational,  because  '  all  men 
are  rational,'  for  he  may  be  an  idiot; 
nor  because  '  man  is  a  being  of  prog- 
ress,' does  the  second  Richard  pro- 
gress, for  he  may  be  a  dunce ;  nor  be- 
cause '  man  is  made  for  society,' 
must  we  go  on  to  deny  that  the  second 
Robert  is  a  gip?y  or  a  bandit,  as  he  is 
found  to  be.  There  is  no  such  thing 
as  stereotyped  humanity;  it  must  ever 
be  a  vague,  bodiless  idea,  because  the 
concrete  units  from  which  it  is  formed 
are  independent  realities.  General 
laws  are  not  inviolable  truths;  much 
less  are  they  necessary  causes.  Since, 
as  a  rule,  men  are  rational,  progres- 
sive, and  social,  there  is  a  high  prob- 
ability of  this  rule  being  true  in  the 
case  of  a  particular  person ;  but  we 
must  know  him  to  be  sure  of  it."  Ibid. 
267. 

"  So,  too,  as  regards  Induction  and 
Analogy,  as  modes  of  Inference;  for, 
whether  I  argue,  'This  place  will 
have  the  cholera,  unless  it  is  drained; 
for  there  are  a  number  of  well-ascer- 
tained cases  which  point  to  this  con- 
clusion,' or,  '  The  sun  will  rise  to- 
morrow, for  it  rose  to-day; '  in  either 
method  of  reasoning  I  appeal,  in  order 
to  prove  a  particular  case,  to  a  gen- 
eral principle  or  law,  which  has  not 
force  enough  to  warrant  more  than  a 
probable  conclusion.  As  to  the  chol- 
era, the  place  in  question  may  have 
certain  antagonist  advantages,  which 
anticipate  or   neutralize   the  miasma 

14 


which  is  the  recipient  of  the  poison; 
and  as  to  the  sun's  rising  to-morrow, 
there  was  a  first  day  of  the  sun's  ris- 
ing, and  therefore  there  may  be  a 
last."     Ibid.  271. 

"  It  is  plain  that  formal  logical  se- 
quence is  not  in  fact  the  method  by 
which  we  are  enabled  to  become  cer- 
tain of  what  is  concrete  ;  and  it  is 
equally  plain,  from  what  has  been  al- 
ready suggested,  what  the  real  and 
necessary  method  is.  It  is  the  cumu- 
lation of  probabilities,  independent  of 
each  other,  arising  out  of  the  nature 
and  circumstances  of  the  particular 
case  which  is  under  review  ;  proba- 
bilities too  fine  to  avail  separately,  too 
subtle  and  circuitous  to  be  convertible 
into  syllogisms,  too  numerous  and  va- 
rious for  such  conversion,  even  were 
they  convertible.  As  a  man's  portrait 
differs  from  a  sketch  of  him,  in  having, 
not  merely  a  continuous  outline,  but 
all  its  details  filled  in,  and  shades  and 
colors  laid  on  and  harmonized  to- 
gether, such  is  the  multiform  and  in- 
tricate process  of  ratiocination,  neces- 
sary for  our  reaching  him  as  a  con- 
crete fact,  compared  with  the  rude 
operation  of  syllogistic  treatment." 
Ibid.  276. 

"  No  matter  of  fact,  that  is  to 
say,  no  actual  phenomenon  of  exter- 
nal nature,  can,  in  any  possible  state 
of  human  knowledge,  be  a  matter 
of  demonstration.  And  it  is  this 
principle  that  fixes  the  limits  of  de- 
monstrative science,  separating  the 
results  of  the  necessary  laws  of  mind 
from  those  of  the  generalized  phe- 
nomena of  matter."  Mansel  on  the 
Limits  of  Demonstrative  Science, 
Letters,  Lectures,  &c.,  1873,  p.  98. 
See,  also,  for  an  able  expansion  ot 
this  principle,  Bentham's  Rationale  of 
Judicial  Evidence,  book  v.  chap.  xvi. 


CHAP.  I.]  PRELIMINARY   CONSIDERATIONS.  [§  8. 

ness  that  he  saw  a  particular  thing,  it  must  appear  circumstan- 
tially probable  not  only  that  the  witness  is  competent  to  observe 
and  is  likely  in  this  respect  to  tell  the  truth,  but  that  the  thing 
testified  is  probable.  We  may  illustrate  the  first  of  these  points 
by  Paley's  famous  argument  for  the  truth  of  the  testimony  of  the 
Apostles.  He  does  not  say,  "  All  men  speak  the  truth  ;  ^Matthew 
was  a  man  ;  therefore  Matthew  spoke  the  truth  ;  "  but  in  view 
of  the  intrinsic  improbability  of  some  of  the  facts  to  which  the 
Apostles  testified,  he  appealed  to  a  complex  web  of  circumstances 
to  show  that  the  Apostles,  uniting  as  they  did  in  the  main  facta 
of  their  stor}^  with  only  such  circumstantial  variety  as  is  one  of 
the  incidents  of  true  historical  narration,  were  from  their  history 
and  character  to  be  regarded  as  credible.  Nor  among  the  cir- 
cumstances upon  which  the  probability  of  such  testimony  de- 
pends, must  we  omit  to  notice  the  way  in  which  it  is  presented, 
which  is  one  of  its  subjective  features.  Mr.  Greenleaf,  when 
discussing  the  credibility  of  the  Apostles  ^  has  grouped,  with  a 
completeness  that  leaves  little  to  be  added,  the  main  incidents  of 
this  circumstantiality,  without  which  the  statements  of  the  Apos- 
tles, however  direct,  would  not  have  been  probable.  "  Every 
event  which  actually  transpires,"  he  argues,  "  has  its  appropriate 
relation  and  place  in  the  vast  complication  of  circumstances  of 
which  the  affairs  of  men  consist ;  it  owes  its  origin  to  the  events 
which  have  preceded  it,  is  intimately  connected  with  all  others 
which  occur  at  the  same  time  and  place,  and  often  with  those  of 
remote  regions,  and  in  its  turn  gives  birth  to  numberless  others 
which  succeed.  In  all  this  almost  inconceivable  contexture,  and 
seeming  discord,  there  is  perfect  harmony  ;  and  while  the  fact, 
which  really  happened,  tallies  exactly  with  every  other  contem- 
poraneous incident,  related  to  it  in  the  remotest  degree,  it  is  not 
possible  for  the  wit  of  man  to  invent  a  story,  which,  if  closely 
compared  with  the  actual  occurrences  of  the  same  time  and  place, 
may  not  be  shown  to  be  false.  Hence,  it  is,  that  a  false  witness 
will  not  willingly  detail  any  circumstances,  in  which  his  testi- 
mony will  be  open  to  contradiction,  nor  multiply  them  where 
there  is  danger  of  his  being  detected  by  a  comparison  of  them 
with  other  accounts,  equally  circumstantial.     He  will  rather  deal 

on  the  Distinction  between  Improba-  ^  Grccnleaf's  Test,  of  Evangelist«, 
bility  and  Impossibility.  33-41. 

1.3 


§  9.]  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

in  general  statements  and  broad  assertions.  And  if  he  finds  it 
necessary  for  his  purpose  to  employ  names  and  particular  circum- 
stances in  his  story,  he  will  endeavor  to  invent  such  as  shall  be 
out  of  the  reach  of  all  opposing  proof  ;  and  will  be  the  most  for- 
ward and  minute  in  details,  where  he  knows  that  any  danger  of 
contradiction  is  least  to  be  apprehended.  Therefore  it  is,  that  va- 
riety and  minuteness  of  detail  are  usually  regarded  as  certain  tests 
of  sincerity,  if  the  story,  in  the  circumstances  related,  is  of  a  nat- 
ure capable  of  easy  refutation  if  it  were  false.  The  difference  in 
the  detail  of  circumstances  between  artful  or  false  witnesses  and 
those  who  testify  the  truth,  is  worthy  of  especial  observation. 
The  former  are  often  copious  and  often  profuse  in  their  state- 
ments, as  far  as  these  may  have  been  previously  fabricated,  and  in 
relation  to  the  principal  matter  ;  but  beyond  this  all  will  be  re- 
served and  meagre,  from  the  fear  of  detection.  Every  lawyer 
knows  how  lightly  the  evidence  of  a  non-mi-recordo  witness  is 
esteemed.  The  testimony  of  false  witnesses  will  not  be  uniform 
in  its  texture,  but  will  be  unequal,  unnatural,  and  inconsistent. 
On  the  contrary,  in  the  testimony  of  true  witnesses  there  is  a 
visible  and  striking  naturalness  of  manner,  and  an  unaffected 
readiness  and  copiousness  in  the  detail  of  circumstances,  as  well 
in  one  part  of  the  narrative  as  another,  and  evidently  without 
the  least  regard  either  to  the  facility  or  difficulty  of  verification 
or  detection.  It  is  easier,  therefore,  to  make  out  the  proof  of 
any  fact,  if  proof  it  may  be  called,  by  suborning  one  or  more  false 
witnesses,  to  testify  directly  to  the  matter  in  question,  than  to 
procure  an  equal  number  to  testify  falsely  to  such  collateral  and 
separate  circumstances  as  will,  without  greater  danger  of  detec- 
.  tion,  lead  to  the  same  false  result.  The  increased  number  of 
witnesses  to  circumstances,  and  the  increased  number  of  the  cir- 
cumstances themselves,  all  tend  to  increase  the  probability  of  de- 
tection if  the  witnesses  are  false,  because  thereby  the  points  are 
multiplied  in  which  their  statements  may  be  compared  with  each 
other,  as  well  as  with  the  truth  itself,  and  in  the  same  proportion 
is  increased  the  danger  of  variance  and  inconsistency." 

§  9.  Lady  Tichborne's  acknowledgment  as  her  son  of  the  claim- 
ant to  the  Tichborne  estates,  may  be  taken  as  another  illustra- 
tion of  the  qualifying  effect  of  circumstances  on  credibility  view- 
ing the  same  subjectively.   If  any  testimony  is  to  be  regarded  as 
16 


CHAP.  I.] 


PRELIMINARY   CONSIDERATIONS. 


[§9. 


direct,  that  of  a  mother  as  to  a  child's  identity  must  be  so  con- 
sidered ;  and  we  might,  if  we  followed  the  old  scholastic  jurists, 
hold  that  among  the  most  reasonable  of  their  doctrines  was  that 
which  declared  that  the  recognition  by  a  mother  of  a  child  was  an 
irrebuttable  presumption  of  the  real  existence  of  the  relations. 
Yet  Lord  Chief  Justice  Cockburn's  analysis  of  the  influences 
acting  on  Lady  Tichborne  shows  how  unreliable,  as  a  medium 
for  the  communication  of  fact,  a  mother,  when  testifying  as  to  the 
identity  of  an  alleged  child,  may  become.^ 


^  "  The  time  had  certainly  come  for 
his  going  to  Lady  Tichborne  at  Paris, 
as  he  liad  been  in  England  since  the 
25th  of  December.  Lady  Tichborne 
being  anxiously  waiting  for  him  in 
Paris,  it  was  not  possible  to  delay 
his  departure  on  his  visit  to  her  any 
longer,  and  on  the  10th  he  starts,  and 
arrives  in  the  evening  at  Paris.  Now 
he  was  accepted,  as  we  know,  by  Lady 
Tichborne  on  his  arrival,  in  an  inter- 
view to  which  I  shall  call  your  atten- 
tion presently.  But  it  may  be  as  well, 
before  we  come  to  their  first  meeting, 
just  to  consider  the  fi-anie  of  mind  in 
which  Lady  Tichborne  was  at  the  time 
she  first  .«aw  him.  A  great  deal,  of 
course,  has  been  made  of  her  acknowl- 
edgment of  him  as  her  son ;  and  one 
cannot  quarrel  with  the  counsel  for  the 
defendant  in  making  that  the  head 
and  front  of  his  battle.  Recognition 
by  the  mother  would  outweigh  the 
omission  of  a  host  of  witnesses  to  find, 
in  the  defendant,  the  real  Roger.  If 
you  want  to  express  the  change  in  a 
person's  appearance  in  the  strongest 
possible  form,  you  resort  to  tlic  popu- 
lar expression,  '  He  is  so  changed  that 
his  own  mother  would  not  know  him 
again.'  And  you  cannot  estimate  too 
highly  the  authority  which  a  mother's 
decision  in  such  a  matter  ought  to 
carry  with  it.  But,  as  I  said  the  other 
day,  there  is  no  rule  so  absolute  but 
that  it  may  admit  of  an  exception,  and 
the  question  is  whether  we  shall  find 

VOL.    I.  2 


such  an  exception  here.  Now  when 
I  admit  to  the  full  the  authority  which 
a  mother's  recognition  of  a  child  ought 
to  carry  with  it,  let  me  say  I  am  not 
to  be  misled  by  any  idle  declamation 
about  a  mother's  instinct.  It  is  not 
like  the  feeling  that  an  animal  has, 
and  possibly  the  human  animal  may 
have,  for  its  new-born  child.  When 
the  instinct  of  a  mother  is  thus  spoken 
of,  it  means  something  which  is  inde- 
pendent of  judgment;  some  impulse  of 
nature  stronger  than  human  judgment 
or  human  reason ;  something  which 
carries  you  irresistibly  on  to  some  par- 
ticular thing.  But  if  a  child  were  en- 
tirely separated  from  its  mother  imme- 
diately upon,  or  very  shortly  after,  its 
birth,  and  she  did  not  see  that  child 
again,  do  you  suppose  if  twenty  years 
afterwards  she  met  that  child  in  a 
crowd  she  would  be  irresistibly  moved 
by  some  internal  impulse  to  throw  her 
arms  around  the  neck  of  the  man  or 
woman,  whichever  it  might  be,  with 
all  the  feelings  of  a  motiicr  ?  Do  you 
suppose  if  a  child  is  removed  from  the 
mother  or  father,  and  brought  up  by 
the  grandmother,  or  grandfather,  or 
uncle,  or  aunt,  in  another  country,  that 
after  years  have  passed  the  person  who 
had  the  bringing  up  or  training  of  the 
cliild  would  not  be  a  much  better  judge 
of  its  identity  than  the  father  or  mother 
to  whom  it  owed  its  birth  ?  The  knowl- 
edge of  identity  on  the  part  of  a  par- 
ent is   the   result  not  of  any  natural 

17 


§10.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


§  10.  When  we  turn  from  the  subjective  to  the  objective  side 
of  testimony,  we  find   additional   reason  for   the  position  just 


impulse,  independent  of  observation 
and  judgment,  wliurcby  a  mother  is 
better  able  to  recognize  her  child  than 
anybody  else  would  be;  it  arises  from 
continually  seeing  and  watching  the 
particular  individual,  from  becoming 
familiarized  by  daily  habit  with  every- 
thing that  appertains  to  personal  iden- 
tity, —  features,  form,  gestures,  every- 
thing which  constitutes  the  sum  total 
of  identity.  It  is  from  being  familiar- 
ized with  these  more  than  anybody 
else  can  be  that  the  father  or  mother 
are  best  able  to  speak  to  the  identity 
of  the  child.  If  a  son  has  lived  much 
away  from  father  or  mother,  if  he  has 
lived  more  with  others  than  with  them, 
it  may  be  that  others  may  have  quite 
as  much  ability  to  judge  of  his  identity 
as  the  father  or  mother  would  have, 
perhaps  even  more.  We  must  not, 
therefore,  allow  ourselves  to  be  car- 
ried away  by  declamatory  common- 
place about  a  mother's  instinct,  but 
must  look  to  see  how  far  we  can  trust 
to  the  mother's  judgment.  More  es- 
pecially if  we  find  in  the  particular 
instance  that  there  has  been  some  such 
strong  bias  as  that  we  cannot  rely  on 
the  judgment  of  the  parent,  we  must 
not  allow  the  conviction  which  every 
other  fact  and  circumstance  in  the  case 
would  naturally  tend  to  engender  in 
our  minds  to  be  overruled  and  over- 
whelmed by  the  fact  of  a  mother  hav- 
ing said  that  a  particular  individual 
from  whom  she  had  been  parted  a  great 
many  years  was  her  son.  We  should 
listen  with  all  due  respect  to  the  opin- 
ion of  the  mother;  we  should  take  it 
as  a  circumstance  calculated  to  weigh 
strongly  in  the  one  scale;  but  if  our 
conviction,  having  taken  into  account 
the  large  range  and  variety  of  facts 
which  we  know  and  which  the  mother 
did   not   know,  is   that  she   must   be 

18 


wrong,  no  appeal  that  is  made  to  your 
feelings,  or  addressed  to  you  in  the 
name  of  the  departed  mother,  ought 
to  influence  your  judgments.  Take  it 
as  a  most  important  circumstance  in 
the  case,  but  not  as  conclusive,  as  the 
learned  counsel  would  make  it.  If  it 
were  so,  what  need  of  all  this  long  and 
protracted  inquiry. 

"  Gentlemen,  —  Let  us  now  consider 
whether  there  were  not  several  things 
which  ought  to  have  made  Lady  Tich- 
borne  hesitate  in  accepting  the  defend- 
ant as  her  son,  even  if  the  defendant, 
on  his  appearance,  had  presented  the 
outward  and  external  appearance  of 
the  son  whom  she  had  lost  ?  Were 
there  not  circumstances  which  ought 
to  have  made  her  pause  and  hesitate, 
and  certainly  not  decide,  before  she 
had  an  opportunity  of  asking,  in  the 
words  of  the  Patriarch,  '  Art  thou  my 
very  son  ?  '  Instead  of  which,  long 
before  she  had  seen  him,  and  with  all 
these  difficulties  standing  in  her  way, 
she  declares  that  he  is  her  son,  and 
accepts  him  as  such.  Just  let  us  see 
what  the  circumstances  were.  There 
were,  as  she  had  learned  from  the  cor- 
respondence of  Mr.  Gibbes,  various 
things  which  the  defendant  had  stated 
which  were  perfectly  incompatible  with 
the  memory  of  Roger.  She  had  been 
told  that  he  had  said  he  had  had  St. 
Vitus's  dance.  She  knew  perfectly 
well  that  Roger  never  had  had  it. 
She  knew  that  he  had  denied  that  he 
had  ever  been  educated  at  Stonyhurst; 
she  knew  that  he  had  denied  that  he 
had  been  an  officer  in  the  Carabineers  ; 
she  knew  that  he  had  said,  in  positive 
contradiction  of  her  statement  that  he 
had  been  so,  that  he  had  enlisted  as  a 
private  in  some  other  regiment,  —  a 
regiment  which  had  no  existence.  She 
knew  he  had  referred  to  his  grand- 


CHAP.  I.] 


PRELIMINARY   CONSIDERATIONS. 


[§  11. 


stated.  Is  there  such  a  thing,  we  may  first  inquu'e,  as  an  ob- 
ject without  circumstances  ?  A  witness,  for  instance,  to  take 
the  ordinary  ilhistration,  says,  "  I  saw  A.  murder  B."  But  with- 
out details,  showing  in  what  the  murder  consisted,  this  state- 
ment is  not  evidence,  and  if  offered,  would  be  rejected  by  the 
court,  as  constituting,  not  evidence  of  a  fact,  but  a  conclusion  of 
law.  To  make  a  statement  of  such  a  killing  admissible,  the  wit- 
ness must  detail  the  circumstances,  and  from  these  circumstances 
the  jury  must  infer  whether  or  no  murder  was  committed. ^ 

§  11.  But  independently  of  this  general  view,  there  is  no  such 
constancy  in  things  human  as  to  enable  a  conclusion  from  past 
conditions  to  be  other  than  probable.  Whether  Roger  Tichborne, 
for  instance,  had  tattoo  marks  on  his  left  arm  was  a  question  as 
to  which  two  distinct  groups  of  witnesses,  each  of  whom  had  op- 
portunities of  noticing  his  arm,  were  in  express  contradiction  ; 


father,  whereas  he  never  could  have 
known  his  grandfather.  Surely  those 
were  things  which  ought  to  have  made 
her  pause  before  she  accepted  him  as 
her  son,  not  having,  up  to  that  time, 
seen  her.  As  to  these  things,  you 
know  there  can  be  no  doubt  that  he 
had  made  statements  inconsistent  Avith 
the  facts,  irreconcilable  with  the  recol- 
lection of  Roger.  Furthermore,  there 
were  two  things  he  had  spontaneously 
referred  to  as  proof  to  her  of  his  iden- 
tity ;  he  had  referred  to  the  brown 
mark,  and  the  Brighton  card  case. 
Now,  with  regard  to  the  first  she  knew 
perfiectly  well  that  she  had  never 
known,  or  seen,  or  heard  of  a  brown 
mark.  She  says  so  in  distinct  terms. 
He  might  have  such  a  mark,  but  she 
had  never  known  it ;  and  inasmuch  as 
it  is  in  the  highest  degree  improbable 
that  a  child  would  have  a  brown  mark, 
such  as  the  defendant  is  descril)cd  to 
have,  without  the  mother  knowing  of 
such  a  thing,  either  by  ocular  sight  or 
by  the  nurse  or  nurses  telling  her, 
ought  not  that  in  itself  to  have  created 
very  considerable  doubt  in  the  mind  of 
Lady  Tichborne  ?     The  brown  mark. 


however,  belongs  to  a  different  head 
of  our  inquiry.  I  do  not  now  stop  to 
inquire  whether  he  had  a  brown  mark 
or  not.  For  our  present  purpose  it  is 
enough  that  having  been  referred  to 
by  him  as  a  proof  of  his  identity,  it 
was  a  thing  altogether  unknown  to 
her."  Cockburn,  C.  J.,  charge  in  Tich- 
borne case,  I.  611. 

1  I  have  discussed  elsewhere  (Whar- 
ton's Criminal  Law,  7th  ed.  §  744), 
the  question  whether,  even  supposing 
the  evidence  be  simply  that  of  A.  tes- 
tifying that  he  saw  B.  shoot  C,  and 
C.  fall  down  dead,  we  have  what  is, 
called  direct  testimony  ;  and  the  result 
of  the  argument  I  there  submitted  is, 
that  even  in  such  cases  the  evidence  is 
circumstantial;  in  other  words,  ^ihat 
in  such  cases  wc  are  convinced  of  guilt 
by  inferring  fact  from  fact.  That  even 
supposing  we  ourselves  were  the  wit- 
nesses, our  conclusions  would  be  infiT- 
ential,  is  exhibited  with  singular  acute- 
ness  by  Berkeley,  in  his  Theory  of 
Vision.  See,  on  this  topic,  the  re- 
marks of  rrofessor  Frazer,  in  his  lato 
valuable  and  interesting  Life  of  Berke- 
ley (Oxford,  1871,  p.  392). 
19 


§  11.]  THE   LAW    OF    KVIDENCE.  [BOOK  I. 

and  whether  twelve  years  would  efface  such  marks,  whether  they 
could  be  effaced  by  any  artificial  process,  were  points  as  to  which 
there  was  equal  conflict  of  testimony.     So  as  to   blood-stains 
Positive  as  are  the  assertions  of  scientific  witnesses  on  each  side 
of  the  question  whether  dried  blood-stains  can  be  determined  to 
be  human,  it  is  agreed  that  no  conclusion  on  this  issue  has  been 
as  yet  reached  sufficient  to  sustain  the  verdict  of  a  jury  ;  and  it 
is  also  agreed  that  lapse  of  time  gradually  effaces  in  such  blood 
stains  whatever  diffei'entia  they  may  at  fii-st  be  supposed  to  pos- 
sess.    So  eminently  is  it  the  case  with  the  human  features.    The 
Tichborne  trial,  to  which  we  may  again  refer,  shows  that  as  to 
questions   of  identity,  after  the  lapse   of  twelve  years,  what  is 
called  "  direct "  testimony,  —  i.  e.  the  testimony  of  A.  that  he  had 
seen  B.  and  C,  and  that  they  are  one  and  the  same  person,  — is 
inferior  in  weight  to  what  is  called  "circumstantial,"  i.  e.  facts 
connected  with  B.  and  C.  capable  of  supporting  inferences  as  to 
such  identity.     In   fine,   if  we  should  follow  in  this  respect  the 
Tichborne  case,  we  might  hold  that  "  direct  "  evidence  is  only 
circumstantial  evidence  in  a  secondary  state.     Mr.  Hopkins,  for 
instance,  the  family  solicitor,  holds  the    claimant   to   be   Roger 
Tichborne,  but  on  what,  Chief  Justice  Cockburn  well  asks,  does 
Mr.  Hopkins  base  his  opinion  ?    On  similarity  of  appearance  ? 
This  is  in  any  view  no  infallible  test ;  and  after  the  lapse  of  a  few 
years,  owing  to  the  treachery  of  memory  and  the  changes  of  the 
human  countenance  and  form,  ceases  to  be  entitled  to  much  con- 
fidence.    On  the  habits  of  the  claimant ;  on  facts  the  witness  un- 
dertakes to  remember  with  which  Roger  Tichborne  was  peculiarly 
familiar?    These,  however,  are  conclusions  as  to  which  it  is  the 
peculiar  province  of  the  jury  to  determine.     The  only  question  is 
whether  they  are  to  take  such  facts  at  first  hand  or  second  hand  ; 
at  first  hand,  as  the  independent  materials  for  their  own  judg- 
ment ;  or  at  second  hand,  as  the  materials  from  which  Mr.  Hop- 
kins formed  his  judgment,  colored,  as  they  must  necessarily  have 
been,  as  he  detailed  them,  by  his  attitude  in  the  case.     But  even 
this  distinction,  plausible  as  it  is,  is  illusory.     The  evidence  of  a 
witness  to  identification,  under  such  circumstances,  is,  if  it  be 
of  any  value,  as  circumstantial,  as  is  the  evidence  of  witnesses 
who  never  saw  the  party  whose  status  is  to  be  established,  but 
who  testify  as  to  his  handwriting,  or  any  other  conditions  pe- 
20 


CHAP.  I.]  PRELIMINARY    CONSIDERATIONS.  [§  H. 

culiar  to  him.  Mr.  Hopkins'  opinion,  for  instance,  should  he  be 
called,  is  only  valuable  so  far  as  it  is  sustainable  by  facts.  In 
truth,  should  he  appear  to  have  had  a  bias  in  the  matter,  the 
efficiency. of  the  facts,  as  transmitted  by  him  is  impaired  by  his 
opinion.  If  he  were  a  mere  passive,  opinionless  transmitter  of 
the  facts,  they  would  be  of  greater  value  than  they  would  be  if 
his  prejudices  tempt  him  to  view  them  either  in  one  or  the  other 
light.  We  may  take,  as  another  illustration,  the  opinions  as  to 
the  size  of  feet  and  hands,  as  given  in  the  same  remarkable  trial. 
This  opinion  varied,  so  far  as  concerns  Roger  Tichborne,  with 
the  views  of  the  witnesses  as  to  the  identity  of  the  claimant  with 
Roger.  Opinions  of  such  witnesses  as  to  the  size  of  Roger's  feet, 
therefore,  would  be  of  very  little  value.  Of  great  value,  how- 
ever, would  be  the  shoemaker's  last,  giving  the  size  of  Roger's 
shoes  ;  and  of  still  greater  value  would  be  one  of  such  shoes,  as 
worn  by  Roger.  Yet  even  here  comes  in  the  qualifying  element 
arising  from  the  infirmity  of  the  subjective  side  of  human  evi- 
dence. The  shoe  itself  could  not,  if  it  were  carefully  preserved, 
tell  a  falsehood  ;  but  a  falsehood  could  be  told,  either  intention- 
ally or  unintentionally,  by  the  witnesses  undertaking  to  identify 
it.  Here,  then,  do  we  reach  the  true  distinction  on  which  to  clas- 
sify evidence  in  this  relation.  That  which  is  mutable  is  a  ground 
for  a  conclusion  which  rises  in  probability  in  inverse  proportion 
to  such  mutability.  The  opinions  of  witnesses  are  mutable  ;  the 
appearance  of  men  is  mutable ;  instruments  of  evidence  (e.  g. 
scraps  of  writing,  parchment  deeds,  inscriptions  on  stone)  are 
more  or  less  mutable  ;  even  the  face  of  nature  is  mutable,  some- 
times by  convulsions  through  its  own  forces,  sometimes  by  the 
hand  of  man.  The  laivs  of  nature,  indeed  (e.  g.  the  recurrence 
of  sunrising  and  sunsetting  at  fixed  periods),  we  assume,  for  the 
purposes  of  justice,  to  be  immutable ;  and  so,  also,  certain  other 
facts  are  assumed,  under  the  title  of  "  fictions  of  law,"  as  essen- 
tial to  a  sound  juridical  policy.  Othev  primd  facie  presumptions 
we  assume,  under  the  title  of  presumptions  of  la^,  for  the  pur- 
pose of  determining  the  burden  of  proof.  But  the  scholastic  dis- 
tinction between  "direct"  and  "circumstantial"  evidence,  with 
the  consequent  maxim  that  "  direct "  evidence  has  a  greater  pro- 
bative force  than  "  circumstantial,"  is  based  on  a  false  analysis, 
and  tends,  in  its  operation,  to  the  perversion  of  justice.     No  such 

21 


§11-] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


artificial  test  is  philosophically  possible  ;  to  attempt  to  apply  it  is 
to  resuscitate  the  absurdity  of  the  scholastic  distinction  between 
whole-proof  and  lialf-proof,  and  to  cause  juries  to  find  false  ver- 
dicts under  the  lash  of  false  law.  The  true  test  is,  that  all  the  evi- 
dence admitted  in  a  case  is  to  be  weighed  in  the  scales  of  natural 
logic.  In  other  words,  each  piece  of  evidence,  when  in,  is  to  have 
the  weight  attached  to  it  by  sound  reason,  unfettered  by  artificial 
rules.i 


1  See  The  Slavers,  2  Wallace,  383  ; 
U.  S.  V.  Martin,  2  McLean,  256  ;  U. 
S.  V.  Cole,  5  McLean,  513;  U.  S.  v. 
Douglass,  2  Blatch.  207;  Findley  v. 
State,  5  Blackf.  576;  Sumner  v.  State, 
5  Blackf.  579  ;  McGregor  v.  State,  16 
Ind.  9;  IMcCann  v.  State,  21  Missis. 
471  ;  Simpson  v.  Barnard,  5  Fla.  528. 

Mr.  Elley  Finch,  in  a  note  to  an 
essay  On  the  Pursuit  of  Truth  (Lon- 
don, 1873),  p.  26,  cites  the  following 
from  Professor  Amos  :  — 

"  From  whatever  cause,  the  fact  in 
question  cannot  be  itself  approached; 
but  the  surrounding  facts,  past,  con- 
temporaneous, or  succeeding,  may 
have  been  seen,  heard,  or  felt,  either 
by  the  investigator,  or  by  somebody 
else,  more  or  less  likely  to  speak  the 
truth  about  them.  '  Circumstantial 
evidence '  is,  then,  the  sort  of  evi- 
dence to  a  fact  taking  place  which  is 
supplied,  not  by  anybody's  having 
observed  it  take  place,  but  by  a  num- 
ber of  other  facts  or  circumstances 
having  been  observed  which  are  held 
to  furnish  a  legitimate  ground  for  an 
inference  from  them  to  the  fact  in 
question."  A  Systematic  View  of  the 
Science  of  Jurisprudence,  by  Sheldon 
Amos,  p.  333. 

To  this  is  adde(l  the  following  from 
Mr.  AVills:  — 

"  The  distinct  and  specific  proving 
power  of  circumstantial  evidence  de- 
pends upon  its  incompatibility  with, 
and  incapability  of  explanation  upon, 
any  reasonable  hypothesis,  other  than 

22 


that  of  the  truth  of  the  principal  fact 

in  proof  of  which  it  is  adduced 

Circumstantial  evidence  is  inherently 
of  a  different  and  inferior  nature  from 
direct  and  positive  testimony  ;  but, 
nevertheless,  such  evidence  is  most 
frequently  superior  in  proving  power 
to  the  average  strength  of  direct  evi- 
dence." Wills  on  Circumstantial  Evi- 
dence, pp.  274,  313. 

On  these  passages  Mr.  Finch  thus 
comments :  — 

"I  cannot  concur  with  Professor 
Amos  in  considering  it  a  fallacy  that 
circumstantial  evidence  may  be  in- 
trinsically and  essentially  of  far 
higher  positive  value  than  direct  evi- 
dence. It  is,  I  conceive,  sometimes 
of  higher  value,  that  is,  more  conclu- 
sive and  convincing,  for  the  reason  he 
gives,  viz.  :  '  The  admitted  truth,  that 
among  a  large  number  of  witnesses  to 
isolated  facts,  of  which  facts  the  wit- 
nesses cannot  appreciate  the  relevancy 
and  import,  there  is  less  likelihood 
(or  possibility,  even)  of  conspiracy 
and  per j  my  than  where  a  small  num- 
ber of  witnesses  come  prepared  to 
tell  an  identical  story  about  a  limited 
number  of  direct  facts  obviously  of 
the  highest  importance.'  Ubi  supra. 
Every  practical  lawyer's  experience 
will,  I  venture  to  think,  confirm  this. 
A\niere  such  surrounding  facts  are  so 
compacted  and  adapted,  each  to  the 
other,  like  the  parts  of  an  arch  or 
a  dome,  as  to  mutually  sustain  each 
other  and  form  a  coherent  whole,  they 


CHAP.  I.] 


PRELIMINARY   CONSIDERATIONS. 


[§12. 


§  12.  Such  being  the  character  of  "  proof,"  we  are  led  to  con- 
sider the  vakie  of  hypothesis  as  a  test  for  the  discovery    ^   .^.    , 

•^  ^  .  •      •  1       Juridical 

of  evidential  truth.  We  have  before  us,  m  every  jurid-  value  of 
ical  inquiry,  a  collection  of  facts  beneath  which  the  truth 
lies.  Some  of  these  facts  are  irrelevant ;  others  are  forged  either 
unintentionally  or  intentionally.  The  case  is  to  be  winnowed 
from  this  refuse  material,  and  the  true  import  of  what  remains 
is  to  be  discovered.  A  leading  phj'^sicist.  Professor  Tyndall,  in 
his  Discourse  on  the  Scientific  Use  of  the  Imagination,^  has  shown 
how  valuable  is  hypothesis  in  the  extraction  of  scientific  truth. 
It  is  of  no  less  value  in  the  extraction  of  juridical  truth.^ 


result  in  what  Dr.  Whewell  terms  the 
'  Consilience  of  Inductions.'  Philos- 
ophy of  the  Inductive  Sciences,  vol.  ii. 
p.  65.  In  direct  evidence  '  the  facts 
to  which  the  witnesses  testify  are,  as 
a  rule,  facts  in  which  they  are  more 
or  less  interested,  and  which,  in  many 
cases,  excite  their  strongest  passions 

to   the   highest   degree They 

know  what  the  point  at  issue  is,  and 
how  their  evidence  bears  upon  it,  so 
that  they  can  shape  it  according  to 
the  efTect  which  they  wish  to  produce. 
....  And  the  facts  which  they  have 
to  observe,  being  in  most  instances 
portions  of  human  conduct,  are  so 
intricate,  that  even  with  the  best  in- 
tentions on  the  part  of  the  witness  to 
speak  the  truth,  he  will  generally  be 
inaccurate,  and  almost  always  incom- 
plete in  his  account  of  what  occurred.' 
The  Indian  Evidence  Act,  with  an 
Introduction  on  the  Principles  of  Ju- 
dicial Evidence,  by  James  Fitzjames 
Stephen,  Q.  C,  chap.  ii.  A  State- 
ment of  the  Principles  of  Induction 
and  Deduction,  and  a  Comparison  of 
their  Application  to  Scientific  and 
Judicial  Inquiries,  p.  29." 

^  London,  1870.  See,  particularly, 
observations  on  pp.  16,  17. 

2  "  Hypothesis,"  to  quote  from  an- 
other eminent  thinker, "  is  the  prelim- 
inary admission  of  an  uncertain  pre- 


mise, which  states  what  is  held  to  be  a 
cause,  in  order  to  test  it  by  its  conse- 
quences. Every  single  consequence 
which  has  no  material  truth,  and  has 
been  derived  with  formal  correctness, 
proves  the  falsehood  of  the  hypoth- 
esis. Every  consequence  which  has 
material  truth  does  not  prove  the 
truth  of  the  hypothesis,  but  vindicates 
for  it  a  growing  probability,  which,  in 
cases  of  corroboration,  without  excep- 
tion, approaches  to  a  position  where 
the  difference  from  complete  certainty 
vanishes  (like  the  hyperbola  of  the 
Asymptotes).  The  hypothesis  is  the 
more  improbable  in  proportion  as  it 
must  be  propped  up  by  artificial  aux- 
iliary hypothesis  {hypotheses  subsidi- 
ariae).  It  gains  in  probability  by 
simplicity,  and  harmony  or  (partial) 
identity  with  other  probable  or  certain 
presuppositions  (Simplex  veri  slgillum  : 
causae  praeter  necessitatem  non  sunt 
multipUcandae)."  Ueberweg's  Logic 
(Lindsay's  translation),  §  134. 

"  Whenever  a  problem  is  under 
consideration,  such  as  the  Darwinian 
Origin  of  Species,  the  Wolfiian  hy- 
pothesis of  the  origin  of  the  Homeric 
poonis,  Schk'ierinacher's,  K.  F.  Her- 
mann's, Munk's,  &c.,  theory  of  the 
arrangement  of  the  Platonic  Dia- 
logues, the  various  theories  of  the 
genesis  of  the  Gospels,  &c.,  the  most 

23 


§13.] 


THE  LAW   OF  EVIDENCE. 


[book  I. 


§  13.  Resorting  again  to  the  Tichborne  case  for  illustrations, 
we  may  observe  that  the  arguments  for  and  against  the  claimant 


essential  condition  for  carrying  on  the 
investigation  in  a  genuinely  scientific, 
and,  at  the  same  time,  the  right  and 
proper  way  for  man,  lies  in  this,  — 
Let  all  the  opposing  fundamental 
opinions  be  brought  under  the  view 
of  different  thoroughly  testing  hy- 
potheses, and  do  not  let  the  one  opin- 
ion (as  too  often  happens  if  it  is  the 
traditional  one)  be  treated  from  out- 
set as  correct,  necessary,  sound,  and 
rational,  and  those  of  opponents  con- 
sidered to  be  false,  arbitrary,  unsuit- 
able, or  foolish.  In  scientific  investi- 
gation every  belief  which  passes  be- 
yond the  bounds  of  the  scientific 
probability  to  be  established  is  neces- 
sarily accompanied  by  illiberality,  in- 
justice, and  passion,  in  proportion  to 
the  tenacity  with  which  it  is  main- 
tained ;  and  this  tenacity  may  arise 
from  supposed  ethical  considerations, 
as  happened  to  Kant  to  some  extent. 

"In  every  comprehensive  problem 
of  this  kind,  a  great  number  of  sin- 
gle circumstances  must  necessarily  be 
explained.  Now  the  student,  what- 
ever stand-point  he  may  take,  very 
seldom  reaches  the  unusually  favor- 
able position  where  he  is  able  to  found 
a  proof  of  the  certainty,  or  even  of 
the  superior  probability,  of  his  view, 
and  of  the  untenable  nature  of  all  op- 
posing opinions  upon  any  one  of  these 
circumstances  which  are  to  be  consid- 
ered. The  conviction  of  the  certainty 
or  superior  probability  of  an  opinion 
may  be  scientifically  established  by  a 
few  instances,  or  even  by  a  single  in- 
stance, as  in  the  case  of  Bacon's  Ex- 
perimentum  Crucis.  In  all  other  in- 
stances the  possibility  only,  or  the 
tenableness  of  an  opinion,  is  the  sub- 
ject of  investigation,  and  the  removal 
of  objections  which  seem  to  prove 
that  opinion  to  be  untenable.     In  this 

24 


investigation  it  is  not  only  legitimate 
but  advisable  to  place  one's  self  at 
the  point  of  view  of  a  given  opinion, 
in  order  to  construct  a  suitable,  com- 
plete, and  harmonious  theory  which 
may  embrace  all  the  facts  of  the  case 
without  distortion,  by  gathering  to- 
gether admissible  conjectures.  Two 
fallacies  are  easily  fallen  into.  The 
one  is,  that  he  who  argues  in  one  way 
may  perceive  a  proof  for  his  opinion 
in  the  harmony  established  in  this 
way,  although  this  harmony  may  en- 
tirely differ  from  the  thought  itself, 
since,  so  long  as  this  opinion  is  not 
absolutely  confirmed  by  the  arguments 
in  its  favor,  the  possibility  of  its  being 
contradicted  is  always  open.  The 
other  fallacy,  which,  as  frequently  oc- 
curs, is  that  when  an  opponent,  from 
his  stand-point,  according  to  its  in- 
ternal consequences,  frames  his  opin- 
ion, and  keeps  himself  free  from  any 
confusion  between  arguments  for  the 
possibility,  and  arguments  for  the  ne- 
cessity of  his  view,  he  is,  nevertheless, 
without  purely  or  completely  acqui- 
escing in  his  stand- point,  argued 
against  as  if  the  necessity  of  his  opin- 
ion were  the  matter  of  investigation 
in  every  instance.  What  is  uncertain, 
too,  in  his  statements,  which  he  re- 
quires in  order  to  thoroughly  carry 
out  his  fundamental  view  of  the  mat- 
ter, is  made  matter  of  reproach  against 
him.  His  presuppositions  are  treated 
as  if  they  were  a  mere  play  of  con- 
jecture and  evasion,  an  inadmissible 
departure  from  the  ground  of  the  fact, 
a  creation  of  hypotheses  from  hyjjoth- 
eses,  reasoning  in  a  circle,  or,  at  least, 
a  capricious  acceptance  of  what  is 
unproved  and  of  what  should  not  be 
made  use  of  without  proof.  But  the 
fact  of  the  matter  is,  that  he  who  so 
speaks  has  to  prove  the  impossibility 


CHAP.  I.] 


PRELIMINARY   CONSIDERATIONS. 


[§13. 


consisted,  first,  in  the  attempts  on  the  one  side  or  the  other,  to 
relieve  the  case  of  that  which  the  party  attempting  the  task 


of  his  opponent's  statements,  not  that 
they  are  not  confirmed  by  facts,  but 
that  they  are  quite  incompatible  with 
facts,  or  with  propositions  which  un- 
deniably follow  from  the  presup- 
positions of  one's  opponent,  under- 
stood as  he  understands  them  ;  be- 
cause, when  possibility  is  denied,  it  is 
not  enough  to  show  the  uncertainty, 
nor  to  prove  the  certainty  of  other 
cases,  impossibility  must  be  demon- 
strated. In  cases  of  this  kind  it  is 
one  of  the  hardest  of  scientific  and 
ethical  problems  to  give  fair  play  to 
one's  opponent.  Our  own  prejudices 
are  sure  to  influence  us.  Yet  the 
effect  of  the  influence  of  another's 
stand-point,  when  it  is  reached,  is  of 
immense  value  in  scientific  knowledge. 
Polemic  easily  leads  to  exasperation  ; 
it  is  easy  both  to  abuse  it,  and  to  let  it 
alone,  because  of  dislike  to  the  conflicts 
which  it  produces;  but  it  is  difficult  to 
recognize  it,  and  use  it  in  the  right 
sense  as  the  necessary  form  which  the 
labor  of  investigation  always  takes. 
Man  never  attains  to  a  scientific  knowl- 
edge of  the  truth  without  a  rightly  con- 
ducted battle  of  scientifically  justifiable 
hypotheses,  the  one  against  the  other ; 
the  scientific  guidance  of  this  battle  is 

the  true  dialectic  method 

"  Every  historical  assertion,  and 
assertions  concerning  the  truth  of 
reported  occurrences,  arc  hypotheses 
which  must  be  confirmed  in  this  way, 
that  they  alone  fully  explain  the 
actual  shape  which  the  report  took, 
and  the  further  course  of  the  histor- 
ical occurrence ;  and  that  they  fully 
coincide  with  what  was  to  be  ex- 
pected, as  the  consequence  of  nature, 
of  the  circumstances,  and  of  earlier 
occurrences.  That  the  '  Koresch' 
who  permitted  the  Jews  to  return 
from  their  exile,  and  to   rebuild  the 


temple,  was  King  Cyrus  (Kosra),  al- 
though this  has  been  asserted  by  Jo- 
sephus,  and  is  to  be  accepted  on  the 
ground  of  tradition,  must  be  held  to  be 
a  mere  hypothesis,  so  long  as  reasons 
worthy  of  notice  are  brought  against 
the  opinion  ;  for  the  testimony  of  Jose- 
phus  may  be  explained  by  the  very 
probable  psychological,  though  unhis- 
torical,  identification  of  a  less  known 
person  with  one  better  known,  and 
from  the  interest  Josephus  had  in  mak- 
ing the  well-known  great  king  appear 
to  be  a  friend  of  the  Jews.  The  iden- 
tification of  '  Koresch  '  with  Kuresch, 
a  Babylonian  satrap  of  Artaxerxes 
Longimanus,  of  his  successor  Darius, 
with  Darius  Nothus,  the  son  of  Xerxes 
and  Esther,  and  consequently  of  Neb- 
uchadnezzar, with  Cambyses,  is  an 
hypothesis  equally  justifiable,  which, 
if  only  it  explains  the  facts,  is  worthy 
of  the  rank  of  an  historical  truth. 

"  In  criminal  cases  the  two  asser- 
tions —  on  the  one  side  of  the  guilt,  on 
the  other  side  of  the  innocence  of  the 
person  accused  —  are  to  be  recognized 
as  hypotheses.  The  prosecutor  and 
the  defendant  have  to  develop  each 
hypothesis  into  its  consequences,  and 
to  prove  in  how  far  their  own  hypoth- 
esis agrees  with  the  facts  obtained  by 
observation  and  testimony,  and  how 
far  their  opponent's  does  not.  A  sin- 
gle case  of  the  absolute  incompatibil- 
ity of  the  opposite  hypothesis  with  any 
one  of  the  ascertained  facts  is  suf- 
ficient to  overthrow  it,  at  least  in  the 
form  hitherto  accepted  ;  but  mere  un- 
certainties and  didiculties  prove  noth- 
ing. One  single  circumstance  which 
admits  of  one  explanation  only,  is 
more  decisive  than  an  hundred  oth- 
ers which  agree  in  all  points  with 
one's  own  hypothesis,  but  are  equally 
well  explained  on  an  opposite  hypoth- 

25 


§  13.]  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

considered  irrelevant  or  untrue,  and  then  to  fit  to  what  remained, 
on  the  one  side,  the  hypothesis  of  the  claimant's  identity,  on  the 
other  side,  the  hypothesis  of  his  non-indentity,  with  Roger  Tich- 
borne.  Of  the  clash  of  these  hypotheses  we  have  the  following 
masterly  summary  by  Lord  C.  J.  Cockburn :  — 

"  The  defendant  tells  us  he  left  Boisdale  and  Dargo,  and  led  a 
wandering  life,  acting  as  a  horse-breaker,  and  again  as  a  stock- 
driver  and  butcher's  man,  and  tlien  set  up  as  butcher.  How 
should  that  have  entered  into  the  thoughts  of  Roger  Tichborne  ? 
In  addition  to  that,  we  have  to  look  at  the  life  of  hardship,  toil, 
privation,  and  at  times  of  distress,  through  which  the  defendant 
represents  himself  to  have  passed.  Upon  what  possible  hypoth- 
esis can  we  conceive  that  Roger  Tichborne  would  have  adopted 
that  life  ?  Let  it  be  granted,  if  you  please,  that  he  was  a  man 
of  eccentric  disposition, —  although  if  we  except  this  part  of  his 
alleged  conduct,  I  can  see  no  trace  of  eccentricity, — let  it  be 
supposed  that  he  was  a  man  capable  of  betaking  himself  to  a 
wild  and  adventurous  life,  being  sated,  we  will  assume,  with  the 
pleasures  and  enjoyments  of  the  life  which  he  had  previously  led. 
But  was  this  a  life  of  adventure  and  interest  ?  Was  it  a  life 
which  a  man  would  adopt  from  any  of  the  somewhat  strange  but 
still  elevated  feelings  which  have  induced  men  to  quit  society 
and  betake  themselves  to  the  desert  ?  Do  you  find  anything  of 
that  sort  in  it  ?  It  is  the  commonplace  life  of  Arthur  Orton.  The 
defendant  represents  himself  as  having  followed  exactly  the  life 
which  Arthur  Orton  would  have  followed,  —  which  any  one  going 
out  to  find  employment  under  similar  circumstances  in  that  new 
world,  because  it  might  be  wanting  in  this,  would  have  led.  But 
it  is  just  the  life  which,  judging  from  experience,  a  man  in  Roger 
Tichborne's  position  would  not  have  submitted  to.  For  we  have 
to  ask  ourselves,  why  should  Roger  Tichborne  have  led  this  life  ? 
Why  should  a  man  in  his  position,  with  an  independent  fortune 
of  his  own  of  £1,000  a  year,  which  no  one  could  touch;  the 
heir  to  a  title  and  to  large  estates  of  at  least  £20,000  a  year; 
lead  this  species  of  life  as  stock-keeper,  or  butcher's  man,  or 
butcher,  or  horse-breaker,  out  in  Australia  ?  Very  honest  occu- 
pations if  a  man  honestly  pursues   them,  but  not  occupations 

esis,  which  has  originated  from  our  op-  See  Silver  Mining  Co.  v.  Fall,  6  Nev. 
ponent's  side  of  the  question."     Ibid.     116;  James  v.  State,  45  Miss.  572. 

26 


CHAP.  I.]  PRELIMINARY   CONSIDERATIONS.      '  [§  13. 

which  you  would  expect  a  man  of  rank  and  fortune  to  adopt. 
For  what  imaginable  purpose  ?  And  from  what  possible  motive  ? 
What  is  the  suggestion  ?  What  account  does  the  defendant  him- 
self give  of  it  ?  The  only  reason  he  assigns  is  that  he  did  not 
intend  to  come  back  to  Europe  until  his  father  died.  But  how 
long  was  he  to  wait  ?  Would  not  a  man  under  those  circum- 
stances have  taken  some  means  to  keep  himself  informed  of 
whether  his  father  was  still  living  or  not  ?  And  then  for  this 
supposed  determination  not  to  come  back  to  Europe  or  England 
so  long  as  the  father  lived,  what  authority  do  we  find  in  the  let- 
ters of  Roger  Tichborne  ?  He  intimates  no  such  intention.  All. 
he  says  is  he  shall  not  be  much  at  Tichborne  and  will  not  reside 
there  as  long  as  his  parents  are  alive.  That  is  all  he  says.  His 
letters  from  South  America  clearly  intimate  an  intention,  though 
not  of  immediate,  yet  of  eventual  return.  And  then  there  is 
another  consideration  which  I  think  must  not  be  lost  sight  of. 
If  there  was  one  person  in  the  world  whom  Roger  loved,  it  was 
his  brother  Alfred.  One  sees  in  his  letters  about  his  brother 
that  he  really  was  fond  of  the  boy,  very  fond  of  him.  He  always 
speaks  of  Alfred  with  playful  tenderness,  which  is  about  one  of 
the  best  forms  in  which  affection  can  show  itself.  Could  Roger 
with  his  acquaintance  with  the  dispositions  of  the  property,  fail 
to  know  that  when  his  father  died,  if  he  gave  no  signs  of  life,  his 
brother  Alfred  would  step  naturally,  in  the  ordinary  course  of 
things,  into  the  possession  of  the  title  and  estates  which  he 
would  be  supposed  to  be  entitled  to  ?  Could  he  have  failed  to 
know  that  grown  to  man's  estate,  Alfred  would  form  a  union 
with  some  lady  in  his  own  ijosition  in  life  ?  Could  he  fail  to 
appreciate  the  humiliation  it  would  be  to  his  brother  and  his 
brother's  wife  and  children,  if,  having  assumed  the  title  and  had 
the  enjoyment  of  the  estates,  they  had  to  step  down  from  the 
position  they  had  taken,  and  to  give  up  both  the  one  and  the 
other  ?  No  brother  could  fail,  I  think,  to  be  conscious  of  the 
false  position — the  painfully  false  position  —  in  which  he  was 
placing,  or  possibly  placing  his  brother,  by  allowing  that  brother 
to  take  a  place  he  ought  not  to  assume,  and  from  which  place  he 
would  be  displaced,  if  the  i-lghtful  owner  afterwards  came  for- 
ward. Again,  it  seems  difficult  to  bring  one's  self  to  believe  that 
a   man   in    Roger   Tichborne's   position,  if   living,  would  have 

27 


§  13.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

allowed  years  and  years  to  pass,  and  his  father,  a  man  already 
very  far  advanced  in  years,  to  go  down  to  his  grave,  without  ever 
taking  the  slightest  trouble  to  inform  himself  whether  the  father 
was  alive  or  not.  Again,  Roger  Tichborne  was  an  indefatigable 
correspondent,  always  anxious  for  news  of  home.  To  the  very 
last  he  begs  each  person  whom  he  addresses  to  write  to  him  at 
the  earliest  moment  in  return.  Can  we  suppose  that,  because  he 
found  himself  in  Australia,  he  would  have  abstained  for  a  long 
series  of  years  from  all  communication  with  home,  and  would 
have  knowingly  left  father,  mother,  and  friends,  in  horrible  un- 
certainty as  to  his  fate  ?  Can  we  suppose  him  to  have  been 
wanting  in  the  common  feelings  of  our  nature  ?  His  was  not  the 
case  of  a  man  driven  into  exile  by  the  unkindness  of  relations  or 
the  abandonment  of  friends,  under  reverse  of  fortune,  or  the 
sense  of  desperation  which  sometimes  leads  men  under  such  cir- 
cumstances to  disconnect  themselves  from  all  former  associations, 
and  to  renounce  forever  the  ties  which  bind  us  to  the  world  in 
which  we  have  lived.  Then  we  find,  further  on,  that  the  defend- 
ant makes  a  marriage  which  it  is  difficult  to  suppose  that  Roger 
Tichborne,  unless  led  away  by  some  strong  passion  and  infatua- 
tion, such  as  does  not  appear  to  have  existed,  would  have  made. 
It  is  a  marriage  which  we  cannot  suppose  he  would  have  formed, 
if  he  had  intended  at  any  time  to  come  back  to  this  country.  Is 
there  anything  to  show  us  that  he  did  not  intend  to  come  back 
to  this  country  ?  The  manner  of  its  solemnization  is  consistent 
with  its  being  the  marriage  of  a  Dissenter,  but  not  of  a  Roman 
Catholic.  Conscious  of  this,  prior  to  coming  forward  as  Roger 
Tichborne,  he  has  his  marriage  solemnized  again  according  to 
the  Roman  Catholic  rite  ;  and  on  signing  his  name  to  the  register 
we  have,  as  I  have  already  pointed  out,  the  remarkable  fact  that 
in  writing  the  name  of  Tichborne  he  was  about  to  write  it 
'  Titchborne,'  and  only  held  his  hand  when  the  '  t '  was  partially 
formed  ;  the  half  of  it  remains  visible.  Could  Roger  Tichborne 
have  done  this  ?  Again,  the  statement  of  the  age,  while  it  agrees 
with  that  of  Ortou,  does  not  agree  with  that  of  Roger  Tichborne 
by  several  years.  Again  —  though  it  is  touching  on  the  same 
subjects  and  going  over  the  same  ground,  yet  it  applies  to  this 
part  of  the  case  as  well  as  the  other  —  can  we  persuade  ourselves 
that  Roger  could  have  written  that  Richardson  letter  ?  What 
28 


CHAP.  I.]  PRELIMINARY    CONSIDERATIONS.  [§  14. 

motive  can  be  suggested  ?  What  purpose  can  be  conceived  ? 
In  no  particular  have  the  explanations  of  the  defendant,  I  am 
sure  you  will  agree  with  me,  been  less  satisfactory  than  in  re- 
spect of  this  remarkable  letter."  ^ 

§  14.  When  the  issue  involves,  not  a  single  question  of  iden- 
tity, as  did  the  Tichborne  case,  but  a  question  of  unknown 
authorship,  then  the  uses  of  hypotheses  are  still  more  striking. 
Who,  for  instance,  was  the  author  of  Junius  ?  On  the  one  side 
we  have  a  group  of  settled  facts,  —  concealment ;  idiosyncrasies 
of  style,  of  information,  of  handwriting ;  political  partialities  ; 
duration  of  correspondence ;  presence  in  London  at  particular 
periods.  On  the  other  side,  we  have  half  a  dozen  claimants,  on 
whom  these  facts  are  to  be  successively  tried,  to  see  if  they  fit. 
We  have  a  similar  necessity  in  cases  when  an  injury  is  inflicted, 
imputable  to  one  of  several  supposed  causes,  our  duty  then  being 
to  see  which  of  these  agencies  produced  the  result.  A  man,  for 
instance,  is  found  bruised  and  stunned  by  a  railway  track.  Was 
it  his  own  negligence  that  worked  the  injury  ?  Was  it  the  neg- 
ligence of  those  operating  the  railroad  ?  Was  it  the  malice  of 
some  third  person  who  wished  to  hurt,  and  took  this  way  of  con- 
cealing his  tracks  ?  Or  a  life  insurance  company  is  sued,  and 
the  evidence  shows  that  a  charred  body,  resembling  that  of  the 
insured,  was  found  in  the  smouldering  ruins  of  a  workshop  in 
Baltimore.  A  good  deal  of  evidence  goes  to  show  design  in  the 
burning  ;  a  good  deal  to  show  traces  of  a  person,  claimed  to  be 
the  supposed  deceased,  wandering  in  other  places,  after  the  fire  ; 
other  evidence  gives  ground  to  infer  that  he  was  afterwards  act- 
ually murdered,  near  West  Chester,  Pennsylvania,  by  one  of 
those  concerned  in  insuring  his  life,  in  order  to  get  him  out  of 
the  way .2  To  such  a  case  as  the  last  we  have  the  following 
several  hypotheses  to  be  successively  applied  :  — 

1.  That  the  body  found  in  the  burned  workshop  was  that  of 
the  insured,  and  that  he  met  his  death  through  casus. 

2.  That  it  was  his  body,  but  that  his  death  was  voluntary  on 
his  part,  he  intending  to  defraud  the  insurers  for  the  benefit  of 
his  family. 

^  Cockburn,  C.  J.,  charge  in  Tich-  conditions,  reported  under  the  name 
borne  case,   II.  794.  of    Com.    v.    Udderzook,    in    the   Ap- 

^  See  this  case,  in  one  of  its  final     pendix  to  Whart.  on  Iloni.  2d  ed. 

29 


§  15.]  THE   LAW   OF   EVIDENCE.  [bOOK  I. 

3.  That  it  was  not  bis  body,  and  tbat  at  tbe  time  of  tbe  suit 
he  was  still  aUve. 

4.  That  tbe  body  was  not  bis,  but  that  before  suit  brought  be 
was  dead,  tbe  murdered  body  found  near  West  Chester  being 
his. 

Tlie  proof  in  such  a  case  consists  in  showing  the  applicability  of 
one  of  these  hypotheses  to  the  facts.  The  facts  are  meaningless 
unless  they  fit  to  an  hypothesis.  Juridical  conviction  may  be 
therefore  defined  to  be  the  fitting  of  facts  to  hypothesis.  If,  in 
criminal  issues,  there  is  reasonable  doubt  whether  the  facts  fit 
the  hypothesis  of  guilt,  then  there  must  be  an  acquittal.  In 
civil  issues,  when  there  are  conflicting  hypotheses,  the  judgment 
must  be  for  that  for  which  there  is  a  preponderance  of  proof. 

§  15.  It  will  hereafter  ^  be  seen  that  ordinarily  the  opinion  of 
a  witness,  not  an  expert,  cannot  be  asked  as  to  a  par- 
not  be  ab-  ticular  Condition.  At  the  same  time  it  must  be  remem- 
detadied  bered  that,  as  we  have  just  seen,  opinion,  so  far  as  it  rep- 
ion"^  °P"^'  resents  an  induction  from  certain  given  facts,  can  in  few 
cases  be  excluded,  because  there  are  few  statements  of 
facts  which  are  not  inductions.  The  statement,  for  instance,  al- 
ready adverted  to,  "  I  saw  A.  shoot  B.,"  is  an  induction  ;  the 
witness  not  seeing  the  ball  strike  B.,  but  inferring  that  it  did 
from  the  report  of  the  pistol  and  the  wound.  We  may  take  an- 
other illustration  from  a  ruling  in  1871  of  the  New  York  court 
of  appeals,  —  a  court  peculiarly  rigorous  in  applying  the  distinc- 
tion between  opinion  and  fact.  The  plaintiff  was  injured  by  a 
railway  collision,  and  having  sued  the  railway  company,  her 
attendant  was  asked  on  the  trial  whether  she  was  able  to  help 
herself,  and  whether  she  needed  assistance.  Answers  to  these 
questions  required  the  expression  of  the  witness's  opinions,  and 
nothing  else.  The  plaintiff's  inability  was  a  conclusion  drawn 
by  the  witness  from  the  plaintiff's  conduct.  But  the  witness's 
answer  that  the  plaintiff  was  not  able  to  help  herself,  was  held 
admissible,  for  the  reason  that  the  conclusion  was  one  which  was 
in  itself  an  abbreviation  of  tbe  facts.^  Opinions,  therefore,  which 
are  abbreviations  of  the  facts,  are  admissible,  when  the  facts, 
though  not  expressed,  are  implied.^ 

1  Infra,  §  509.  »  See  fully,  infra,  §§  509-10. 

2  Sloan  I?.  R.  R.  45  N.  Y.  125. 

30 


CHAPTER  II. 


RELEVANCY. 


Relevancj'  is  that  which  conduces  to  the 
proof  of  a  pertinent  hypothesis,  §  20. 

Whatever  so  conduces  is  relevant,  §  21. 

Process  one  of  logic,  applicable  to  all  kinds 
of  investigation,  §  22. 

So  in  questions  of  identity,  §  24. 

Mr.  Stephen's  theor}'  of  relevancy,  §  25. 

Criticism  of  this  theory,  §  26. 

Conditions  of  an  hypothesis,  whose  proof 
is  relevant,  may  be  prior,  contemporane- 
ous, or  subsequent,  §  27. 

Non-existence  of  such  conditions  is  also  rel- 
evant, §  28. 

Collateral  disconnected  acts  generalU-  irrel- 
evant, §  29. 

Scienter  may  be  proved  inductively  by  col- 
lateral facts,  §  30. 

So  may  intent  in  trespass,  §  31. 

So  in  libels  and  slander,  §  32. 

So  in  fraud,  §  33. 

So  in  adultery,  §  34. 

So  may  good  faith,  §  35. 

So  may  prudence  and  wisdom,  §  36. 

So  in  questions  of  identity  and  aUbi,  §  37. 

System  may  be  proved  to  rebut  hypothesis 
of  accident  or  casus,  §  38. 


From  one  part  similar  qualities  of  another 

part  may  be  inferred,  §  39. 
So  in  questions  of  negligence,  §  40. 
Evidence  of  prior  firings  admissible  against 

railroad  for  negligent  firing,  §  42. 
When  s\'stem  is  proved,  conditions  of  other 

members   of    the   same   sj-stem   may   be 

proved,  §  44. 
Ownership  mav  be  inferred  from   system, 

§  45. 
Character  not  relevant  in  civil  issue,  §  47. 
When  character  is  at  issue,  general  reputa- 
tion can  be  proved,  §  48. 
Character  is  convertible  with    reputation, 

§  49. 
Character  may  be    proved   to   increase    or 

mitigate  damages,  §  50. 
In   suits   for    seduction,    bad    character  of 

plaintiff  may  be  shown,  §  51. 
So  in  suits  for  breach  of  promise,  §  52. 
So  in  suits  for  slander  or  libel,  §  53. 
So  in  suits  for  malicious  prosecution,  §  54. 
Burden    is    on    party   assailing   ciiaracter, 

§55. 
Particular  facts  cannot  be  put  in  evidence, 

§56. 


§  20.  Relevancy  is  that  which  conduces  to  the  pi-oof  of  a  per- 
tinent hypothesis.^  A  will,  for  instance,  is  contested,  udcvancy 
and  several  hypotheses  are  presented,  on  either  of  which,  J.o,Kiuces 
if  proved,  the  instrument  would  be  invalid.  The  signa-  J^^^^^hlen^t 
ture,  for  instance,  may  have  been  forged,  or  the  testator  hypothesis, 
insane,  or  he  may  have  been  fraudulently  induced  to  execute  a 
paper  different  from  that  which  he  had  in  view.  To  each  of  these 
hypotheses  a  series  of  counter  hypotheses  are  conceivable.  If  the 
hypothesis  set  up  for  the  defence  is  forgery,  then  all  facts  which 
^  See  as  to  hypothesis,  supra,  §  12. 

31 


§  21.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

are  conditions  of  forgery  are  relevant.  A  party,  for  instance, 
sued  on  a  bill  sets  up  forgery  ;  to  meet  this  hypothesis  it  is  ad- 
missible for  the  plaintiff  to  prove  that  the  defendant,  at  the  time 
of  the  making  of  the  bill,  was  trying  to  borrow  money.^  If  the 
hypothesis  set  up  for  the  defence  is  fraud,  then  all  facts  which 
are  conditions  of  fraud  are  relevant.  Or,  to  take  another  illus- 
tration :  a  prairie  is  fired,  it  is  said,  by  a  passing  locomotive  ; 
the  hypothesis  of  the  plaintiff  is  that  the  firing  was  by  negli- 
gence, and  for  the  plaintiff  all  the  conditions  of  negligence  are 
relevant.  The  defence  sets  up  casus,  or  contributory  negligence ; 
and  then,  on  the  part  of  the  defence,  it  is  relevant  to  prove  the 
conditions  of  either  of  the  latter  hypotheses. 

§  21.  Hence  it  is  relevant  to  put  in  evidence  any  circumstance 
Whatever  whicli  tends  to  make  the  proposition  at  issue  either  more 
duces^is  o^'  ^^^^  improbable.  Nor  is  it  necessary  at  once  to  offer 
relevant.  r^\\  ^\^q  circumstances  necessary  to  prove  such  proposi- 
tion. The  party  seeking  to  prove  or  disprove  the  proposition 
may  proceed  step  by  step,  offering  link  by  link.  Whatever  is 
a  condition,  either  of  the  existence  or  of  the  non-existence  of  a 
relevant  hypothesis,  may  be  thus  shown. ^     But  no  circumstance 

^  Stevenson  v.   Stewart,   11   Penn.  Mass.    122;    Com.    v.    Costley,    118 

St.  307.  Mass.  1  ;  Hill  i-.  Crompton,  119  Mass. 

^  R.  V.  Pearce,  Pea.  R.  75;  R.  v.  376;  Furnas  v.  Durgin,  119  Mass. 
Egerton,  R.  &  R.  375,  cited  by  Hoi-  500;  Paine  v.  Farr,  118  Mass.  74: 
royd,  J.,  in  R.  v.  Ellis,  6  B.  &  C.  148 ;  Blancbard  v.  N.  J.  S.  59  N.  Y.  292  ; 
R.  V.  Briggs,  2  M.  &  Rob.  199,  per  Haugbey  v.  Strickler,  2  Watts  &  S. 
Alderson,  B. ;  R.  v.  Rooney,  7  C.  &  411;  Pratt  v.  Ricbards,  69  Penn.  St. 
P.  517  ;  R.  V.  Fursey,  6  C.  &  P.  81  ;  53  ;  Tborapson  v.  Stevens,  71  Penn.  St. 
M.  of  Anglesey  {;.  Ld.  Hatberton,  10  161;  Arnold  v.  Bank,  71  Penn.  St. 
M.  &  W.  235,  per  Ld.  Abinger;  Fur-  287  ;  Confer  v.  McNeal,  74  Penn.  St. 
neaux  v.  Hutcbins,  2  Cowp.  807;  Doe  112  ;  Brooke  v.  Winters,  39  Md.  505; 
u.  Sisson,  12  East,  62;  Scbucbardt'y.  Comstock  v.  Smitb,  20  Micb.  338; 
Aliens,  1  Wall.  359;  Butler  v.  Wat-  Welcb  r.  Ware,  32  Micb.  77;  Mar- 
kins,  13  Wall.  457;  Deitscb  v.  AVig-  quette  R.  R.  v.  Langton,  32  Mich, 
gins,  15  Wall.  540;  Wiggin  v.  Scam-  251;  Willougbby  v.  Dewey,  54  111. 
mon,  27  N.  H.  360 ;  Hovey  t?.  Grant,  266;  Hough  v.  Cook,  69  111.  581; 
52  N.  H.  569;  Raynes  v.  Bennett,  114  Hancock  v.  Wilson,  39  Iowa,  47  ;  John- 
Mass.  424;  Fitzgerald  v.  Pendergast,  son  v.  Filkington,  39  Wise.  62;  Baker 
114  Mass.  368;  Com.  v.  Dowdican,  t>.  Lyman,  53  Ga.  339;  Selma  r.  Keith, 
114  Mass.  257;  Huntsman  r.  Nichols,  53  Ga.  178;  Rucker  v.  Man.  Co.  54 
116  Mass.  521;  Willis  I'.  Hulbert,  117  Ga.  84;  Ashley  v.  Martin,  50  Ala. 
Mass.  151;  Com.  v.  Sturtivant,  117  537. 
32 


CHAP.  II.]  RELEVANCY.  ,         [§  22. 

is  relevant  which  does  not  make  more  or  less  probable  the  prop- 
osition at  issue. ^ 

§  22.  What  has  been  said  applies  to  all  lines  of  investigation 
of  truth.     "  What  we  at   present  call   the   cuneiform    ^^^^^^^  ■ 
inscriptions  of  Cyrus,  Darius,  Xerxes,  Artaxerxes  I.,    logical, 

.  'Z         '  '  and  appli- 

Darius  II.,  Artaxerxes  Mnemon,  Artaxerxes  Ochus  (of  cable  to  all 
which  we  now  have  several  editions,  translations,  gram-  vestiga- 
mars,  and  dictionaries), —  what  were  they  originally?  *"^°' 
A  mere  conglomerate  of  wedges,  engraved  or  impressed  on  the 
solitary  monument  of  Cyrus  in  the  Murghab,  on  the  ruins  of 
Persepolis,  on  the  rocks  of  Behistun  near  the  frontiers  of  Media, 
and  the^precipice  of  Van  in  Armenia.  When  Grotefend  at- 
tempted to  decipher  them,  he  had  first  to  prove  that  these  scrolls 
were  really  inscriptions,  and  not  mere  arabesques  or  fanciful 
ornaments.  He  had  then  to  find  out  whether  these  magical  char- 
acters were  to  be  read  horizontally  or  perpendicularly,  from  right 
to  left,  or  from  left  to  right.  Lichtenberg  maintained  that  they 
must  be  read  in  the  same  direction  as  Hebrew.  Grotefend,  in 
1802,  proved  that  the  letters  followed  each  other,  as  in  Greek, 
from  left  to  right ;  even  before  Grotefend,  Miinter,  and  Tychsen 
had  observed  that  there  was  a  sign  to  separate  the  words.  Such 
a  sign  is  of  course  an  immense  help  in  all  attempts  at  decipher- 
ing inscriptions,  for  it  lays  bare  at  once  the  terminations  of  hun- 

^  Infra,    §   29  ;    Carter    r.    Pryke,  depends  upon  several  facts,  to  some 

Pea.  R.   95  ;  Backhouse    v.   Jones,   G  extent  independent  of  each  other,  and 

Biug.  N.  C.  65;  S.  C.  8  Scott,   148  ;  where  each  fact  must   he  proved  to 

HolUngham  v.  Head,  4  C.  B.  (N.  S.)  complete  the  chain  of  evidence,  the 

388;  Rew  v.  Hutchins,  10  C.  B.    (N.  exercise  of  a  sound  judicial  discre- 

S.)  829;  Howard  v.  Sheward,  L.  R.  tion  does  not  require  the  court,  uni- 

2    C.   P.  148  ;    Lucas    v.  Brooks,    18  formly,  to   interfere   in  the  order   of 

Wall.  43G;  Sherman  v.  Trans.  Co.  31  the  testimony.     A  beginning  must  be 

Vt.    162;    Van   Binvn   v.   Wells,    19  made  somewhere;  and  when,  as  in  the 

Wend.  203;  Carey  v.  Bright,  58  Pcnn.  present  case,  the  court  is  satisfied  that 

St.  70;  Borden  Co.  v.  Barry,  17  Md.  the  party  is  acting  in  good  faith,  and 

419;  Sevarcool  v.   Farwell,  17  Mich,  intends  fairly  to  supply  each  particu- 

308  ;  Nason   v.  Woodward,   16  Iowa,  lar  link  till  the  chain  of  testimony  is 

216  ;    Bryant  v.   Ingraham,    16    Ala.  perfect,  the  evidence,  as  offered,  may 

116.  come  in,  subject   to  objection,  to  be 

"  We   agree   with    the    defendant's  stricken   out  and  go    for  nothing    if 

counsel  that,  as  a  general  rule,  no  evi-  the   necessary  connecting    portion   be 

dence  should  be  admitted  till  the  court  not    supplied."      Foster,    J.,   Moppin 

can  see  that  it  is  admissible.     Where,  v.  JEina.  Axle  &  Spring  Co.  41   Conn, 

however,  the  admissibility  of  evidence  34. 

VOL.  I.  3  83 


§  23.]  TIIK   LAW    OF    EVIDENCE.  [BOOK  I. 

dreds  of  words,  and,  in  an  Aryan  language,  supplies  us  with  the 
skeleton  of  its  grammar.  Yet  consider  the  difficulties  that  had 
still  to  be  overcome  before  a  single  line  could  be  read.  It  was 
unknown  in  what  language  these  inscriptions  were  composed  ;  it 
might  have  been  a  Semitic,  a  Turanian,  or  an  Aryan  language. 
It  was  unknown  to  what  period  they  belonged,  and  whether  they 
commemorated  the  conquests  of  Cyrus,  Darius,  Alexander,  or 
Sapor.  It  was  unknown  whether  the  alphabet  used  was  pho- 
netic, syllabic,  or  ideographic.  It  would  detain  us  too  long  were 
I  to  relate  how  all  these  difficulties  were  removed  one  after  the 
other ;  how  the  proper  names  of  Darius,  Xerxes,  Hystaspes,  and 
of  their  god  Ormuzd,  were  traced  ;  how  from  them  the  values  of 
certain  letters  were  determined ;  how  with  an  imperfect  alphabet 
other  words  were  deciphered  which  clearly  established  the  fact 
that  the  language  of  these  inscriptions  was  ancient  Persian  ;  how 
then,  with  the  help  of  the  Zend,  which  represents  the  Persian 
language  previous  to  Darius,  and  with  the  help  of  the  later  Per- 
sian, a  most  effective  cross-fire  was  opened  ;  how  even  more  pow- 
erful ordnance  Avas  brought  up  from  the  arsenal  of  the  ancient 
Sanskrit ;  how  outpost  after  outpost  was  driven  in,  a  practical 
breach  effected,  till  at  last  the  fortress  bad  to  surrender  and  sub- 
mit to  the  terms  dictated  by  the  Science  of  Language."  ^ 

§  23.  A  similar  series  of  progressive  tests  are  applied  in  order 
to  exhibit  the  meaning  of  any  controverted  writing.  A  memo- 
randum, for  instance,  in  a  foreign  language,  is  put  in  evidence, 
for  the  purpose  of  proving  a  debt.  The  plaintiff  sets  up,  first, 
that  the  instrument  is,  we  may  say,  in  German  ;  secondly,  that 
certain  phrases  in  it  have,  by  the  custom  of  trade,  a  meaning 
different  from  that  they  bear  in  ordinary  use.  Here  are  two 
hypotheses  successively  presented  in  order  to  get  at  the  meaning 
of  the  instrument ;  and  whatever  goes  to  prove  either  of  these 
hypotheses  is  relevant.  The  number  of  the  hypotheses  increases 
and  diminishes  with  the  complication  of  the  case.  If,  for  in- 
stance. Sir  Philip  Francis's  title  to  the  authorship  of  Junius  is 
under  investigation,  we  have  a  series  of  concentric  hypotheses, 
each  of  which  is  pertinent,  and  the  innermost  of  which  closely 
surrounds  the  point  of  identity.  It  is  pertinent  to  argue,  that 
the  author  of  Junius,  during  the  Chatham  and  Grafton  ministries, 
^  Miillcr's  Lecture?  on  Language,  6th  ed.  vol.  ii.  Lect.  I. 
34 


CHAP.  II.]  EELEVANCY.  [§  24. 

was  familiar  with  English  public  life ;  that  he  possessed  a  prac- 
tised pen  ;  that  he  was  cognizant  of  the  traditions  of  the  war- 
office  ;  that  his  animosity  to  Lord  Mansfield,  and  his  attachment 
to  Lord  Chatham,  were  strong  ;  that  he  had  cogent  motives  for 
concealment  both  at  the  particular  period  and  for  years  after- 
wards; that  he  ceased  to  write  about  1773  ;  that  his  handwrit- 
ing had  certain  marked  peculiarities.  Each  of  these  hyjDotheses 
being  pertinent,  it  is  relevant  to  prove  that  Sir  Philip  Francis 
was,  during  the  period  when  the  Junius  letters  appeared,  familiar 
with  English  public  life ;  that  his  style  was  polished,  vigorous, 
and  not  unlike  that  of  Junius ;  that  he  had  been  for  some  time  a 
clerk  in  the  war-office  ;  that  his  political  relations  repelled  hiir 
from  Lord  Mansfield  and  connected  him  with  Lord  Chatham  ; 
that  to  him  discovery  would  be  political  ruin  ;  that  about  the 
time  tlie  Junius  letters  closed  he  left  the  country ;  that  his  hand- 
writing was  strikingly  similar  to  that  of  Junius. ^ 

§  2-1.  In  questions  of  identity  we  ^  have  abundant  illustrations 

of  the  principles  iust  announced.     Thus  in  an  action  of   „   . 

.  .  .  I'll!  So  in  ques- 

trover  for  the  conversion  of  a  heifer,  which  both  par-  tions  of 
ties  claimed  to  have  raised,  where  there  are  conflicting 
hypotheses  of  identity,  it  is  relevant  to  ask  a  witness  who  has  tes- 
tified to  having  been  among  the  plaintiff's  herd  of  cattle  for  two 
or  three  years  as  to  their  tameness,  as  to  their  habits,  and  even 
as  to  their  most  general  characteristics.^  So,  recurring  to  a  more 
conspicuous  illustration,  to  take  the  Tichborne  case,  we  have  both 
on  the  part  of  the  plaintiff  and  of   the  defendant  a  succession  of 

^  "  This  is  in  accordance  with  the  false  or  mistaken,  to  identify  (he  land." 
general  rule  in  such  cases,  that  proof"  Lane  v.  Thompson,  -13  N.  11.  3-'0; 
is  admissible  of  every  material  fact  Tenney  v.  East  Warren  Lumber  Co. 
that  will  help  to  identify  the  person  43  N.  H.  343  ;  (ioodhue  v.  Clark, 
or  thing  intended,  and  which  will  ena-  37  N.  H.  52G  ;  Shore  r.  Wilson,  5 
ble  the  court  to  put  themselves  as  near  Scott's  N.  R.  958 ;  Emerson  r.  White, 
as  may  be  in  the  situation  of  the  par-  29  N.  H.  482,  498;  Webster  v.  At- 
tics to  the  deed;  and  then  when  the  kinson,  4  N.  IL  21;  Bullen  r.  Run- 
court,  by  the  aid  of  all  these  facts,  can  nels,  2  N.  H.  258;  Cocheco  Man'f.  Co. 
ascertain  the  intention  of  the  parties,  v.  Whitfier,  10  N.  H.  305  ;  Richard- 
and  especially  of  the  grantor,  they  will  son  r.  Palmer,  38  N.  II.  212;  Harvey 
construe  the  deed  so  as  to  give  effect  v.  Mitchell,  31  N.  II.  582;  Swain  r. 
to  that  intention  when  they  can  find  Saltuiarsh,  54  N.  II.  \G. 
enough  in  the  description,  after  reject-  ^  De  Armond  c.  Neasniith,  .'12  Mich, 
ing  all  the  particulars  in  which   it  is  231. 

35 


§  24.]  THE  LAW   OF  EVIDENCE.  [BOOK  I. 

pertinent  concentric  hypotheses,  the  conditions  of  either  of  which 
it  was  relevant  to  prove.  On  the  part  of  the  plaintiff,  for  instance, 
the  hypothesis  was  that  the  legal  owner  of  the  Tichborne  estates 
was  Roger  Tichborne,  who  was  educated  in  France,  who  returned 
when  a  young  man  to  England  for  a  few  years,  which  he  spent 
carelessly  if  not  dissolutely ;  that  he  quarrelled  with  his  father 
and  mother,  and  sailed  on  a  voyage  of  adventure  to  the  new 
world ;  that  he  was  wrecked  in  South  America,  and  then  found 
his  way  to  Australia  ;  that  in  Australia  he  was  employed  as  a 
butcher,  under  the  name  of  Castro,  was  married,  and  acquired  a 
home  ;  that  upon  the  death  of  his  father  and  uncle,  he  concluded 
to  return  to  England  ;  that  he  was  the  plaintiff  in  the  ejectment 
case  on  trial.  On  the  part  of  the  defence  the  hypothesis  was 
that  the  defendant  was  Arthur  Orton,  a  boy  trained  in  a  Wap- 
ping  butcher's  store,  who  led  a  vagrant  life  in  South  America  and 
Australia  for  years,  and  then,  when  settled  in  Australia,  having 
seen  in  the  London  Illustrated  News  a  sketch  of  the  wanderings 
and  of  the  leading  characteristics  of  the  lost  heir  to  the  Tichborne 
estates,  undertook  to  personate  that  long-sought  individual,  and 
was,  by  force  of  such  personation,  the  plaintiff  in  court.  Here, 
on  the  part  of  both  plaintiff  and  defendant,  there  was  a  succes- 
sion of  pertinent  hypotheses,  the  conditions  of  which  it  was  rele- 
vant to  prove.  No  matter  how  slight  may  be  the  inference  of 
identity  to  be  drawn  from  any  single  fact,  it  is  admissible  as  a 
fragment  of  the  material  from  which  the  induction  is  to  be  made. 
One  hundred  thousand  persons  may  be  in  a  city  at  the  time  when 
in  that  city  a  particular  act  is  done,  and  proving  A.  to  have  been 
in  the  city  at  the  time  makes  a  case  against  him,  which  is  by 
itself  only  as  one  against  one  hundred  thousand,  yet  it  is  never- 
theless relevant  to  prove  that  he  was  at  the  time  in  the  city. 
Multitudes  of  persons  having  to  work  with  kerosene  have  kero- 
sene stains  on  their  clothes,  yet,  when  on  the  trial  of  a  person 
charged  with  burning  a  house,  the  hypothesis  of  the  prosecution 
being  that  an  accomplice  of  the  defendant  fired  the  building  by 
means  of  a  can  of  kerosene  oil  furnished  for  the  purpose  for  the 
defendant,  it  is  relevant  for  the  prosecution  to  prove  that  the 
shirt  of  the  accomplice,  when  he  fired  the  building,  had  on  it 
kerosene  stains.^ 

1  State  V.  Kingsbury,  58  Me.  239. 
36 


CHAP.  II.]  RELEVANCY.  [§  25. 

§  25.  Mr.  Fitzjames  Stephen,  to  whose  energy  and  eloquence 
the  cause  of  law  reform  is  under  great  indebtedness,  has    Mr.  ste- 
given  a  theory  of  relevancy  differing  in  several  minor    ory  o'f^rde- 
points  from  that  which    is   here  expressed.     Accord-    ^ancy. 
ing  to  Mr.  Stephen,^  "  Evidence  may  be  given  in  any  action  of 
the  existence  or  non-existence  of  any  fact  in  issue,  and  of  any  fact 

relevant  to   any  fact  in  issue,   and  of  no  others Facts, 

which,  though  not  in  issue,  are  so  connected  with  a  fact  in  issue 
as  to  form  part  of  the  same  transaction  or  subject  matter,  are 

relevant  to  the  fact  with  which  they  are  so  connected 

Facts,  whether  in  issue  or  not,  are  relevant  to  each  other,  when 
one  is,  or  probably  may  be,  or  probably  may  have  been, — 

"  The  cause  of  the  other  ; 

"  The  effect  of  the  other ; 

"  An  effect  of  the  same  cause  ; 

"  A  cause  of  the  same  effect ; 
or  when  the  one  shows  that  the  other  must  or  cannot  have  oc- 
curred, or  probably  does  or  did  exist,  or  not ;  or  that  any  fact 
does  or  did  exist,  or  not,  which  in  the  common  course  of  events 
would  either  have  caused  or  have  been  caused  by  the  other ;  pro- 
vided that  such  facts  do  not  fall  within  the  exclusive  rules  " 
before  stated,  "  or  the  exceptions  "  afterward  stated. 

These  exclusions  and  exceptions  are  afterwards  thus  specified  : 
"  Similar  but  unconnected  facts.  The  occurrence  of  a  fact  simi- 
lar to,  but  not  specifically  connected  in  any  of  the  ways  herein- 
before mentioned  with  the  facts  in  issue,  is  not  to  be  regarded  as 
relevant  to  the  existence  of  such  facts  except  in  the  cases  spe- 
cially excepted  in  this  chapter."     The  exceptions  are,  — 

Acts  showing  intention,  good  faith,  &c.  ; 

Facts  showing  system  ; 

Existence  of  a  particular  course  of  business  ; 

Acts  showing  that  a  particular  pei'son  assumed  to  be  a  pub- 
lic officer. 
To  Mr.  Whitworth,  an  English  barrister,  we  are  indebted  for 
the  following  modification  of  Mr.  Stephen's  scheme  :  — 

Rule  I.  —  No  fact  is  relevant  which  does  not  make  the  exist- 
ence of  a  fact  in  issue  more  likely  or  unlikely,  and  that  to  such  a 
degree  as  the  judge  considers  will  aid  him  in  deciding  the  issue. 
^  Digest  of  the  Law  of  Evidence,  London,  1876,  p.  4  et  seq. 

87 


§  2G.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

Rule  IL  —  Subject  to  Rule  I.,  the  following  facts  are  rele- 
vant :  — 

1.  Facts  which  are  part  of,  or  which  are  implied  by,  a  fact  in 
issue ;  or  which  show  the  absence  of  what  might  be  expected  as 
a  part  of,  or  would  seem  to  be  implied  by,  a  fact  in  issue. 

2.  Facts  which  are  a  cause,  or  which  show  the  absence  of  what 
might  be  expected  as  a  cause,  of  a  fact  in  issue. 

3.  F;icts  which  are  an  effect,  or  which  show  the  absence  of 
what  might  be  expected  as  an  effect,  of  a  fact  in  issue. 

4.  Facts  which  are  an  effect  of  a  cause,  or  which  show  the  ab- 
sence of  what  might  be  expected  as  an  effect  of  a  cause,  of  a  fact 
in  issue. 

Rule  III.  —  Facts  which  affirm  or  deny  the  relevancy  of  facts 
alleged  to  be  relevant  under  Rule  IL  are  relevant. 

Rule  IV.  —  Facts  relevant  to  relevant  facts  are  relevant. 

§  26.  While  adopting,  as  will  hereafter  be  seen,  several  of  Mr. 
^  . .  .  Stephen's  positions,  there  are  two  criticisms  I  offer  as 

Criticism  .     . 

of  the  explaining  why  I  cannot  accept  his  scheme  as  affording 

&bov6>  •  , 

a  complete  solution  of  the  difficulties  which  beset  this 
branch  of  evidence.  In  the  first  place,  the  words  "  cause  "  and 
"  effect  "  are  open,  when  used  in  this  connection,  to  an  objection 
which,  though  subtle,  is  in  some  cases  fatal.  The  "  cause  "  of 
a  fact  in  issue,  it  is  alleged,  is  relevant ;  yet  whether  such  a  cause 
produced  such  a  fact  is  the  question  the  action  is  often  instituted 
to  try  ;  and  it  is  a  ji^e^iY/o  principii  to  say  that  the  "  cause"  is 
relevant  because  it  is  the  "cause,"  and  that  it  is  shown  to  be 
the  cause  because  it  is  relevant.  In  the  second  place,  the  dis- 
tinction between  "  facts  in  issue"  and  "facts  relevant  to  facts  in 
issue  "  cannot  be  sustained.  An  issue  is  never  raised  as  to  an 
evidential  fact ;  the  only  issues  the  law  knows  are  those  which 
affirm  or  deny  conclusions  from  one  or  more  evidential  facts. 
This  is  shown  by  Mr.  Stephen's  own  illustration  :  "A.,"  he  says, 
when  explaining  the  supposed  distinction,  "  is  indicted  for  the 
murder  of  B.,  and  pleads  not  guilty.  The  following  facts  may 
be  in  issue :  the  fact  that  A.  killed  B.  ;  the  fact  that  at  a  time 
when  A.  killed  B.  he  was  prevented  by  disease  from  knowing 
right  from  wrong  ;  the  fact  that  A.  had  received  from  B.  such 
provocation  as  would  reduce  his  offence  to  manslaughter.  The 
following  facts  would  be  relevant  to  the  issue  :  the  fact  that  A. 
38 


CHAP,  ir.]  RELEVANCY.  [§  26. 

had  a  motive  for  murdering  B.  ;  the  fact  that  A.  admitted  that  he 
had  murdered  B.  ;  the  fact  that  A.  was,  after  B.'s  death,  in  pos- 
session of  property  taken  from  B.'s  person."  If  we  scrutinize 
the  group  of  facts  classified  in  the  last  quotation  as  "  facts  in  is- 
sue," we  will  find  that  as  they  are  facts  which  could  not  be  put 
in  evidence,  they  are  not  relevant  facts,  though  they  might  be 
relevant  hypotheses  to  be  sustained  by  relevant  facts.  If  counsel 
should  ask  a  witness  whether  "  A.  killed  B,,"  the  question  would, 
if  excepted  to,  be  ruled  out,  on  the  ground  that  it  called,  not  for 
"facts,"  but  for  a  conclusion  from  facts,  and  to  such  conclusions 
witnesses  are  not  permitted  to  testify. ^  Equally  summarily 
would  be  dismissed  the  questions  whether  "  A.  knew  right  from 
wrong,"  and  whether  "  A.  had  received  from  B.  such  provocation 
as  would  reduce  his  offence  to  manslaughter."  The  only  way  of 
proving  either  of  these  "  facts  in  issue,"  as  they  are  called  by  Mr. 
Stephen,  is  by  means  of  what  he  calls  "  facts  relevant  to  theis  - 
sue."  Did  A.  kill  B.  ?  We  cannot  say  that  it  would  be  relevant 
to  the  issue  for  a  witness  to  say,  "  A.  killed  B.,"  for  a  witness 
would  not  be  permitted  so  to  testify.  No  facts  are  relevant  which 
are  inadmissible ;  and  the  fact  that  A.  killed  B.,  being  in  this 
shape  inadmissible,  is  irrelevant.  It  is,  however,  admissible,  to 
take  up  Mr.  Stephen's  illustration  of  facts  relevant  to  the  issue, 
to  prove  that  "  A.  had  a  motive  for  murdering  B.,  the  fact  that 
A.  admitted  that  he  had  murdered  B.  ;  the  fact  that  A.  was, 
after  B.'s  death,  in  possession  of  property  taken  from  B.'s  person." 
From  such  facts,  taken  in  connection  with  facts  Avhich  lead  to  the 
conclusion  that  A.  struck  the  blow  from  which  B.  died,  the  hy- 
pothesis that  A.  murdered  B.  is  to  be  verified  or  discarded.  The 
same  line  of  obseiwations  is  applicable  to  the  second  and  third  of 
the  "facts  in  issue"  mentioned  by  Mr.  Stephen.  The  proof  of 
A.'s  inability  to  distinguish  right  from  wrong,  and  of  the  exten- 
uation of  his  offence  through  hot  blood,  can  only  be  made  by 
proving  "  facts  relevant  to  the  issue  "  from  which  irresponsibility 
or  hot  blood  can  be  inferred.  We  must  tlierefore  strike  out  from 
the  category  of  relevant  facts  what  Mr.  Stephen  calls  "  facts  in 
issue,"  or  what  may  be  more  properly  called  pertinent  hypothe- 
ses, and  limit  ourselves  to  the  position  that  all  facts  relevant  to 
"  facts  in  issue  "  (or  to  pertinent  hypotheses)  are,  as  a  rule,  ad- 

^  Sec  infra.  §  507. 

39 


§  28.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

missible.  If  we  discard,  as  ambiguous,  the  word  "  fact,"  and 
substitute  for  it,  as  has  previously  been  done,  the  word  "  condi- 
tion "  (corresponding  to  the  logical  "  differentia  "  or  incident), 
then  the  position  we  may  accept  is  that  all  conditions  of  a  perti- 
nent hypothesis  are  relevant  to  the  issue ;  and  that  such  condi- 
tions may  be  either  proved  or  disproved. 

§  27.  Conditions,  the  presence  or  absence  of  which  may  be 
Conditions  thus  proved,  may  be  regarded  as  either  prior,  contempo- 
JJwr,^con-  raneous,  or  subsequent.  A  debt,  for  instance,  for  goods 
temporane-   ^q\a  j^g  jg  contended,  is  sued  for.    Among  the  prior  con- 

ous,  or  sub-  '  .  .  T 

sequent.  ditions  of  the  hypothesis  (or  contention)  of  indebtedness 
may  be  mentioned  the  possession,  by  the  plaintiff,  of  the  goods. 
As  contemporaneous  conditions  are  to  be  classed  what  we  call  the 
res  gestae^  or  circumstances  of  the  sale.  Among  the  subsequent 
conditions  is  the  conduct  of  the  debtor,  more  or  less  effectively 
admitting  the  debt.  Or  damages  are  claimed  in  a  suit  for  injur- 
ing cattle  by  running  them  down  on  a  railroad.  Among  the  prior 
conditions  of  the  liability  are  the  unfenced  condition  of  the  road 
and  the  running  of  the  locomotive  at  full  speed  over  the  unfenced 
sections.  Among  the  contemporaneous  conditions  are  the  res 
gestae.  Among  the  subsequent  conditions  are  the  admissions  of 
parties  entitled  to  speak  for  the  railroad  company.^  In  other 
cases  we  may  regard  as  relevant  conditions  a  party's  subsequent 
conduct  showing  good  faith  ;  ^  the  subornation  of  witnesses  to 
give  a  false  account  of  a  past  transaction  ;  ^  subsequent  acts  of 
adultery  to  prove  a  prior  act  of  adultery ;  ^  subsequent  defama- 
tory words  to  prove  the  animus  of  prior  defamation.^ 

§  28.  In  the  same  way  that  the  existence  of  the  conditions  of 
Non-exist-  ^  pertinent  hypothesis  are  provable,  so  also  are  the 
ence  of        non-existence  of  such  conditions  provable,  whether  they 

such  condi-  r  '  .' 

tionsaiso     be  prior,  contemporaneous,  or  subsequent.^    Thus,  when 

the  hypothesis  of  the  plaintiff  is  that  the  defendant's 

engines  were  ill-constructed ;  that  at  the  time  of  the  alleged 

firing   they  profusely  emitted  sparks ;  that  the  fire,  by  the  ordi- 

1  See  infra,  §  1173.  R.  607;  5  M.  &  Gr.  700;  Warwick 

2  Gerish  v.  Chartier,  1  C.  B.  13.  v.  Foulkes,  12  M.  &  W.  507  ;  Simp- 
8  Melhuish  r.  Collier,  15  Q.  B.  878.     son  v.  Robinson,  12  Q.  B.  511. 

*  Boddy  V.  Boddy,   30  L.  J.  Pr.  &         «  See  Sheen    v.  Bumpsteed,   2    H. 

Mat.  23.  &  C.    193;  Gerish   v.  Chartier,  1    C. 

6  Pearson  v.  Le  Maitre,  6  Scott  N.  B.  13. 
40 


CHAP,  n.]  RELEVANCY.  [§  29. 

nary  and  natural  progress,  consumed  the  plaintiff's  house,  it  is 
relevant  for  the  defendant  to  prove  the  absence  of  conditions 
which  would  be  the  probable  if  not  necessary  conditions  of  such 
hypothesis.  So,  the  defendant  may  show  that  his  engines  were 
so  constructed  as  to  make  the  profuse  emission  of  fire  highly 
improbable ;  that  the  coals  that  escaped  fell  on  the  bed  of  the 
road,  on  which  there  was  no  accumulation  of  combustible  mate- 
rial ;  and  that  the  fire  by  which  the  plaintiff  was  injured  was  trace- 
able to  the  negligence  of  other  parties.  Or,  when  the  hypothe- 
sis of  the  plaintiff  is  that  when  A.  and  B.  perished  in  the  same 
ship  at  sea,  A.  survived  B.,  it  is  admissible  for  the  defendant  to 
show  that  before  the  shipwreck  A.  was  stronger  than  B. ;  that  at 
the  time  of  the  shipwreck  A.  was  in  a  better  place  for  the  pro- 
longation of  life  than  B. ;  and  that  after  the  shipwreck  there 
were  traces  of  A.  having  escaped  the  common  and  immediate 
death  of  those  remaining  in  the  ship.^  Or,  alihi  being  the  hy- 
pothesis set  up  by  the  defence,  it  is  admissible  to  prove  even 
independent  crimes  committed  by  the  defendant  if  such  proof 
refutes  the  hypothesis  of  alibi.^ 

§  29.  As   a  general  rule,  therefore,  it  is  inadmissible,  when 
the  issue  ie  wliether  A.  did  a  particular  thing,  to  put   Collateral 
in  evidence  the  fact  that  he  did  a  similar  thing  at  some   „ec'ted' 
other  time.    The  reasons  why  this  rule  should  be  main-   eraih^rrei- 
tained  are  obvious.     To  admit  evidence  of  such  col-   evant. 
lateral  acts  would  be  to  oppress  the  party  implicated  by  trying 
him  on  a  case  as  to  which  he  has  no  notice  to  prepare,  and  some- 
times by  prejudicing  the  jury  against  him  by  publishing  offences 
of  which,  even  if  guilty,  he  may  have  long  since  repented,  or  may 
have  long  since  been  condoned.     Trials  would  by  this  process 
be  injuriously  prolonged,  the  real  issue  obscu^d,  and  verdicts 
taken  on  side  issues.-^     To  sustain  the  introduction  of  such  col- 
lateral facts,  they  must  be  in  some  way  capable,  as  will  presently 
be  seen  more  fully,  of  being  brought  into  a  common  system  with 

1  See  infra,  §  1280.  v.   Whittier,   8   Shepl.  341;    Com.  v. 

2  R.  y.  Briggs,  2  M.  &  Rob.   199;     Miller,   3    Cush.    243;    Williams     v. 
R  V.  Rooncy,  7  C.  &  P.  517.  Fitch,  18  N.  Y.  54G;  Mailler  v.  Pro- 

8  Grimths  V.  Payne,  11  A.  &  E.  131 ;  peller  Co.  61  N.  Y.  312;  Cole  v.  Com. 

Thompson  v.  Mosely,  5  C.  &  P.  502  ;  5  Grat.    696  ;    Williams   v.  State,  45 

R.  V.  Muhhs,  6  Cox  C.  C.  223;   Good-  Ala.  57,  and  cases  cited   supra,  §  21. 
rich  V.  Wilson,  119  Mass.  429  ;  State 

41 


§  30.]  THE   LAW   OF   EVIDKNCE.  [BOOK  I. 

that  untlor  trial.  Tlius,  in  an  action  against  the  acceptor  of  a 
bill  by  an  indorsee,  the  defence  being  forgery,  it  was  held  irrele- 
vant to  introduce  proof  that  a  collection  of  bills,  on  which  the 
defendant's  name  had  been  forged,  had  been  in  the  plaintiff's 
possession,  and  that  some  of  them  had  been  circulated  by  him, 
the  reason  given  being  that  there  was  no  distinct  proof  that  the 
bill  in  question  had  ever  formed  part  of  that  collection. ^  So  the 
fact  that  a  party  draws  his  notes  generally  in  a  particular  way  is 
not  evidence  to  prove  that  he  drew  a  specific  note  in  such  a  way.^ 
§  30.  Knowledge,  however,  must  usually  be  proved  inductively 
from  facts  by   which  notice   to  the  partv   can  be  in- 

Scien'er  "^  •   -i  •  ii  •     "      t      • 

may  be  fcrred  ;  and  hence,  witlnn  well  ascertained  limits,  evi- 
du°th-ciy  dence  of  overt  acts,  of  the  same  class  as  that  under 
erarfacts  investigation,  is  admissible  for  the  purpose  of  proving 
scienter  or  intent,  or  of  negativing  accident.  A  party, 
for  instance,  is  charged  with  holding  or  circulating  forged  paper, 
or  other  documents,  as  to  which  it  is  important  to  prove  his 
scienter.  One  of  such  papers  he  may  hold  without  being  justly 
chargeable  with  knowledge  of  its  character ;  when  three  or  four 
are  traced  to  him,  suspicion  thickens ;  if  fifteen  or  twenty  are 
shown  to  have  been  in  his  possession  at  different  times,  then  the 
improbability  of  innocence  on  his  part  in  this  relation  is  in  pro- 
portion to  the  improbability  that  the  papers  could  have  found 
themselves  in  his  possession  without  his  knowing  their  true  char- 
acter. ^ 

The  evidence  of  scienter  is  of  course  much  strengthened  by 
proof  that  the  party  had  notice,  on  a  prior  occasion,  that  suspi- 
cion attached  to  paper  of  the  same  character  as  that  he  is  now 
charged  with  illegally  holding  or  passing,^ 

1  Griffiths  I'.  Payne,  11  A.  &  E.  Harris,  7  C.  &P.  429;  R.v.  Roebuck, 
131.  See  Tliompson  r.  Mosely,  5  C.  36  Eng.  Law  &  Eq.  631  ;  Com.  v. 
&  P.  502.  In  Griffiths  v.  Payne,  it  Hall,  4  Allen,  305  ;  Com.  v.  Edgerly, 
was  said  by  Lord  Uenman  that  such  10  Allen,  184  ;  R.  v.  Pascoe,  Pearce 
evidence  would  be  inadmissible  on  an  &  D.  456  ;  U.  S.  v.  Burns,  5  McLean, 
indictment  for  forgery.  It  certainly  23;  State  r.  Twitty,  2  Hawks,  449; 
would,  to  prove  that  the  paper  was  People  v.  Farrell,  30  Cal.  316.  See 
forged,  but  it  could  be  received  to  cases  in  Whart.  Cr.  Law,  §  647;  Tay- 
prove  scienter,  assuming  a  forgery.  lor  on  Ev.  §  322. 

2  Iron  Mountain  Bk.  v.  Murdock,  *  11.  v.  Hough,  R.  &  R.  120;  R.  v. 
62  Mo.  70.  Hodgson,  1  Lew.  103  ;   R.  v.  Forster, 

8  R.  V.  Fuller,  R.  &  R.  308;  R.  v.     Dear.  45G;  R.  v.  Francis,  L.  R.  2  C. 

42 


CHAP.  II.]  RELEVANCY.  [§  32. 

So  when  the  hypothesis  proposed  is  that  A.  received  certain 
articles  from  B.,  knowing  them  to  be  stolen,  it  is  relevant  to  show 
that  A.  had  received  and  pledged  to  other  parties  a  series  of  other 
articles,  proved  to  have  been  stolen  by  B.^  Again,  the  conten- 
tion being  that  A.,  the  acceptor  of  a  bill  of  exchange,  knew  that 
the  name  of  the  payee  was  fictitious,  it  has  been  held  relevant  to 
prove  that  A.  had  accepted  other  bills  in  the  same  manner  be- 
fore they  could  have  been  transmitted  to  him  by  the  payee,  if  the 
payee  had  been  a  real  person.^  Knowledge,  in  such  case,  may  be 
inferred  when  it  is  more  probable  than  ignorance.  Thus,  where 
a  plaintiff  sought  to  set  aside  a  contract  on  the  ground  of  his  hav- 
ing been  insane  when  it  was  made  ;  the  court  held,  upon  an  issue 
as  to  whetlier  or  not  the  defendant  was  at  the  time  aware  of  the 
insanity,  that  evidence  of  the  plaintiff's  conduct,  at  different  times 
both  before  and  after  the  date  of  the  contract,  was  admissible,  for 
the  purpose  of  showing  that  the  madness  was  of  such  a  character 
as  must  have  been  apparent  to  any  one,  who  had  had  opportuni- 
ties of  observation  like  those  afforded  to  the  defendant.^ 

§  31.  To  prove  intent  similar  evidence  is  pertinent.    One  blow 

triven  to  A.  by  B.  may  be  accidental ;  few  counsel  would  ^ 

°  ...  .  Sf^  i^ay 

have  the  audacity  to  claim    accident  for  eight  or  ten  intent  in 

A     1       -r*  •         •  11  trespass. 

blows  given  to  A.  by  B.  at  successive  intervals,  under 
varying  conditions.^ 

§  32.  One  letter  sent  by  A.  to  B.,  demanding  money,  may  be 
ambiguous  ;  it  may  cease  to  appear  so  if  seen  in  the        . 
light  of  a  series  of  prior  letters  demanding  money,  with    libei  and 

,  ,  .  •        1      1  1     K  slander. 

threats  wliose  purport  is  unmistakable.^ 

The  hypothesis  of  the  plaintiff  in  an  action  for  libel  or  slander 
is  that  the  libel  was  malicious  ;  to  prove  malice  it  is  relevant  for 
the  i^laintiff  to  prove  continuous  defamation  by  the  defendant  for 
ten  years,^  and  for  this  purpose  acts  of  defamation  subsequent 

C.  R.  128;  State  v.  McAllister,  24  Me.  douski  v.  McGee,  4  J.  J.  Marsh.  267. 

139;   Com.  r.  Stearns,   10   Met.  2oG  ;  See  Spencer  y.  Thompson,  ti  Ir.  C.  L. 

Ilendrick  v.  Com.  5  Leigh,  708  ;   Ma-  R.  (N.  S.)  53  7,  571  ;  Com.  i^.  McCar- 

son  V.  State,  42  Ala.  532.  thy,  119  Mass.  354. 

»  Dunn's  case,  1  Mood.  C.  C.  14G.  ^  R.  v.  Rohinson,  2  Leach,  749;  R. 

^  Stephen's    Evidence,   18,    citing  v.   Boucher,   4    C.   &  P.   5G2 ;    R.  v. 

Gibson  V.   Hunter,  2  IL  Bl.  288.  Cooper,  3  Co.x  C.  C.  54  7. 

8  Beavan  v.  McDonnell,  10  Ex.  R.  ®  Barrett  v.   Long,   3    IL    L.    Cas. 

184.  395,  414. 


R.  V.  Yoke,   R.    &  R.  531  ;  So- 


43 


§33.] 


THE   LAW   OF  EVIDENCE. 


[book  I. 


to  that  in  issue  are  admissible.^  No  subsequent  libels,  however, 
can  be  admitted,  if  they  do  not  relate  to  the  same  general  sub- 
ject matter  as  that  charged  ;  ^  though  repetitions,  even  after 
action  brought,  are  admissible.^  It  is  scarcely  necessary  to  add 
that  any  insulting  acts,  preceding  or  accompanying  a  defamatory 
publication,  can  be  put  in  evidence  as  illustrating  its  motive.'* 
On  the  other  hand,  in  mitigation  of  damages,  the  defendant  has 
been  allowed  to  prove  that  he  copied  the  libel  from  another  news- 
paper,'* or  that  he  had  been  provoked  by  attacks  on  him  by  the 
defendant,^  provided  such  libels  relate  to  the  general  subject  of 
the  trial,'^  or  are  generally  calculated  to  provoke.^ 

§  33.  Fraud  in  an  assignment  is  the  question  in  dispute ;  to 
S  in  solve  this  question  it  is  admissible  to  prove  that  the  as- 

fraud.  signor  at  the  same  time  made  other  conveyances  clearly 
in  fraud  of  creditors.^  Nor  is  a  plaintiff,  in  a  suit  charging  the 
defendant  with  fraud,  confined  to  the  fraudulent  misstatements 
set  out  in  the  declaration  ;  other  illustrative  fraudulent  misstate- 
ments may  be  put  in  evidence. ^^ 


^  Pearson  v.  Le  Maitre,  C  Scott  N. 
K.  607;  5  M.  &  Gr.  700.  See,  also, 
Hemmings  v.  Gasson,  E.,  B.  &  E.  346; 
Perkins  v.  Vaughan,  4  M.  &  Gr.  988. 
In  Warwick  v.  Foulkes,  12  M.  & 
W.  509,  tlie  defendant  to  an  action 
for  false  imprisonment  pleaded,  first, 
not  guilty;  and  secondly  justification, 
to  the  effect  that  the  plaintiff  had 
committed  a  felony.  It  was  held  that  Hotchkiss  v.  Lothrop,  1  Johns.  286 
although  the  defendant  subsequently         ''  May  r.  Brown,  ut  supra. 


See  C.  V.  A.  B.,  2  Weekly  Notes, 
291. 

6  Saunders  v.  Mills,  6  Bing.  213  ; 
affirmed  in  Pearson  v.  Le  Maitre,  6 
Scott  N.  R.  607,  5  M.  &  Gr.  700. 

s  Taylor's  Ev.  §  322,  citing  Watts 
V.  Frazer,  7  A.  &  E.  223  ;  Tarpley  v. 
Blabey,  2  Bing.  N.  C.  437;  4  Scott, 
642;  May  ?'.  Brown,   3  B.  &  C.  113; 


•withdrew  and  apologized  for  the  plea 
of  justification,  it  might  be  taken  into 
account  as  going  to  show  malice. 

2  See  Finnerty  v.  Tipper,  2  Camp. 
72  ;  Watson  v.  Moore,  2  Cush.  133. 

8  Townsend  on  Libel,  §  390.  See, 
as  to  general  rule,  Baldwin  r.  Soule, 
6  Gray,  321  ;  Bobbins  v.  Fletcher, 
101  Mass.  115;  Mix  v.  Woodward, 
12  Conn.  262;  Williams  r.  Miner,  18 
Conn.  464;  Howard  v.    Sexton,  4   N. 


^  See  Wakley  v.  Johnson,  By.  & 
M.  422;  Thomas  v.  Dunaway,  30  111. 
373;  Botelar  v.  Bell,  1  Md.  173; 
Pugh  V.  McCarty,  40  Ga.  444. 

^  Stockwell  ?;.  Silloway,  113  Mass. 
384;  Cook  v.  Moore,  11   Cush.  216. 

1°  Huntingford  v.  Massey,  1  Fost.  & 
F.   690. 

"  Fraud  being  alleged,  a  wide  range 
is  given  in  proof  of  circumstances 
tending  to  establish  it,  it  being  a  mat- 


Y.  157;  Kennedy  r.  Gifford,  19  Wend,  ter  of  secrecy  generally.     It  is  only 

296.  by  collecting   together  numerous  cir- 

*  Bond  V.  Douglas,   7   C.  &  P.  626;  cumstances  oftentimes  that  it  can  be 

Kean  v.  McLaughlin,  2  S.  &  R.  469.  brought   to   the  Ught  and  exposed." 

44 


CHAP.  II.]  RELEVANCY.  [§  35. 

§  34.  The  same  line  of  reasoning  leads,  in  suits  for  adultery, 
to  the   admission  of    other  adulterous   acts  about  the    ^^  -^^ 
same  time,^  or  even  subsequent  to  that  in  issue.^  adultery. 

§  35.  It  is  sometimes  important  to  determine  whether  a  party, 
in  doing  a  particular  thing,  acted  in  good  faith.  In  the  Good  faith 
old  practice  his  mouth  was  sealed ;  and  in  such  cases  fl^rl^  f ronj 
his  good  faith  could  be  only  shown  by  inferences  from  ^J^^^^  ^''^'^'y 
circumstances.  Under  our  present  practice  he  may  be  it- 
examined  as  to  his  reasoning  and  motives  ;  ^  but  such  evidence 
is  necessarily  open  to  suspicion,  since  it  undertakes  to  prove  good 
faith  by  an  appeal  to  the  very  good  faith  which  is  to  be  proved. 
If  the  party  is  destitute  of  good  faith,  he  cannot  be  a  reliable 
witness  to  prove  good  faith ;  and  independently  of  this  technical 
criticism,  we  know  by  experience  that  there  are  few  objects  as 
to  which  memory  is  so  treacherous  as  our  past  motives  and  rea- 
sonings, if  we  separate  these  motives  and  reasonings  from  the 
facts  by  which  they  are  induced.  Hence  it  iias  been  properly 
held  that  when  good  faith  is  at  issue,  it  is  relevant  to  put  in  evi- 
dence facts  which  would  justify  such  good  faith. '^  One  of  the 
most  striking  illustrations  of  this  rule  is  to  be  found  in  homicide 
cases,  in  which  it  is  admissible,  in  order  to  sustain  the  bona  fides 

Hall   V.    Stanton,  Sup.  Ct.  Penn.    2  See,  also,  Hall  v.  Naylor,    18   N.    Y. 

Weekly  Notes,  578;  Brown  v.  Shock,  588,  and  Castle  v.  Bullard,   23  How- 

77  Penn.  St.  471.  ard,  172."     See,  also,  R.  v.  Holt,  Bell 

"  Where  fraud  in  the  purchase  or  C.  C.  280  ;  Hovey  v.  Grant,  52  N.  H. 

sale  of  property  is  in  issue,  evidence  5G9. 

of  other  frauds  of  like  character  com-  As  to  the  latitude  allowed  in  cases 

mitted  by  the  same  parties,  at  or  near  of  fraud,  see  Simons  v.  Vulcan  Co.  Gl 

the  same  time,  is  admissible.     Its  ad-  Penn.    St.    202;  Heath    i'.    Pa;:;e,    63 

missibility  is   placed   on   the   ground  Penn.  St.  108;  Woods  y.  Gununert,  G7 

that  where   transactions  of  a  similar  Penn.    St.  136;  Brown    v.  Schock,  77 

character,  executed  by  the  same  par-  Penn.  St.  471;  Stewart  v.   Fonner,   2 

ties,  arc  closely  connected  in  time,  the  Weekly  Notes,  51 1. 

inference  is  reasonable  that  they  pro-  ^  Com.  v.  Nicholls,  114  Mass.  285. 

ceed  from  the  same  motive.    The  prin-  ^  Boddy   v.  Boddy,   30  L.  J.  Pr.  & 

ciplo  is  asserted  in  Cary  v.  Hotailing,  Mat.  23;  Thayer  v.  Thayer,  101  Mass. 

1   Hill,  311,  and  is  sustained  by  nu-  111,  overruling  Com.   v.  Thrasher,  11 

merous  authorities.    Tlae  case  of  fraud,  Gray,  450. 

as  there  stated,  is  among  tlie   few  ex-  ^  Infra,  §  482. 

ceptions  to  the  general  rule  that  other  ■*  See  Meihuish  v.  Collier,  15  Q.  B. 

offences  of  the  accused  are  not  rele-  878.     And  see  infra,  §  252. 
vant   to  establish   the   main    charge. 

45 


§  86.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

of  a  party  who  claims  that  he  bolieved  he  was  acting  in  self- 
defence,  for  him  to  show  that  he  had  been  advised  of  threats  on 
the  part  of  his  assailant  to  take  his  life.^  So,  where  the  question 
was  whether  the  defendant  had  represented  herself  to  the  plain- 
tiff as  a  married  woman,  and  had  been  bond  fide  trusted  by  the 
plaintiff  as  such,  it  was  held  that  it  would  be  relevant  for  the 
plaintiff'  to  show  that  he  had  previously  heard  that  the  defendant 
had  represented  herself  as  a  married  woman  to  other  parties.^ 
So  in  a  case  already  noticed,  where  the  hypothesis  on  which  the 
plaintiff  rested  was  that  he  was  insane  at  the  time  of  a  particular 
contract,  it  was  held  admissible  for  him,  in  order  to  sustain  the 
bona  fides  of  this  hypothesis,  and  the  fact  that  his  insanity  must 
have  been  known  to  the  other  contracting  parties,  to  prove,  by 
his  conduct  at  the  time  in  question,  that  he  must  have  been  re- 
garded as  insane  by  those  who  dealt  with  him.^  So,  where  the 
plaintiff's  case  was  that  the  defendant  represented  to  the  plain- 
tiff that  D.  was  solvent,  Avhen  he  knew  the  contrary,  it  is  rele- 
vant, to  disprove  this  hypothesis,  to  show  that  at  the  time  when 
the  defendant  made  the  representations  D.  was,  to  the  defend- 
ant's knowledge,  supposed  to  be  solvent  by  his  neighbors  and 
customers.*  Contemporaneous  and  subsequent  acts  may  also  be 
received  to  prove  good  faith.  Thus,  where  A.  is  sued  by  B.  for 
the  price  of  work  done  by  B.,  by  the  order  of  C,  a  contractor, 
upon  a  house  of  which  A.  is  owner,  and  where  A.'s  defence  is 
that  B.'s  contract  was  solely  with  C,  it  is  relevant  for  A.,  in 
order  to  show  that  in  good  faith  he  made  over  to  C.  the  absolute 
and  sole  control  of  the  work,  to  prove  that  he  paid  C.  the  entire 
sum  necessary  to  pay  for  such  work.^ 

§  36.  What  has  been  said  as  to  the  admissibility  of  indepen- 
So  as  to  dent  acts  as  a  basis  from  which  good  faith  may  be  in- 
andlws'^-^  ferred,  applies  with  peculiar  force  to  the  admission  of 
dom.  sndi  facts  when  there  is  a  contest  as  to  whether  pru- 

dence   or  diligence  was  exercised  by  a  particular   person   at  a 
particular  time.     For  instance,  on  a  question  as  to  whether  an 

1  See  Wliart.  on  Homicide,  §  694.  s  Beavan  v.  McDonnell,  10  Ex.  R. 
See,  .also,  Watts  v.  Frazer,  7  A.  &  E.     188. 

223.     And  infra,  §§  252,  269.  4  Sheen  v.  Bumpsteed,  2  II.  &  C. 

2  Barden  v.  Kcverberg,  2  M.  &  W.     193;  5.  C.  in  Exch.  1  II.  &  C.  358. 
61-  5  Stephen's    Evidence,     18,    citing 

Gerish  v.  Chartier,  1  C.  B.  13. 

46 


CHAP.  II.]  EELEVANCY.  [§  38. 

engineer,  in  the  management  of  a  train  at  a  collision,  acted  pru- 
dently, there  is  no  doubt  that  it  would  be  admissible  to  prove 
the  cries  of  bystanders  without  producing  such  bystanders.  So 
in  an  action  for  malicious  prosecution,  when  the  question  was, 
what  influenced  a  magistrate  to  do  a  particular  act,  it  has  been 
held  admissible  to  put  in  evidence  a  letter  to  the  magistrate, 
without  calling  the  person  by  whom  the  letter  was  written. ^  So 
in  all  cases  in  which  prudence  and  diligence  are  to  be  shown,  it 
is  admissible  to  put  in  evidence  all  the  facts  by  which  prudence 
and  diligence  are  to  be  gauged.^ 

§  37.  If  identity  is  disputed,  it  is  admissible,  in  order  to  defeat 
the  hypothesis  of  non-identity,  to  prove  that  a  person,    (^QUj^jg^^, 
like  the  party  charcred,  was  eno;ao;ed  about  the  same    fa^ts  i»ay 

1         .7  &       '  too  _  l,e  iiitro- 

time  in  similar  acts,  even  though  these  acts  are  inde-   (Uiced  to 
pendent  crimes.^     Or  if  an  alihi  is  set  up,  it  is  relevant,   tity  or  re- 
in order  to  defeat  the  hypothesis  of  alihi,  to  prove  that     ^^^  "  '  '" 
the  defendant,  at  the  time  he  is  alleged  to  have  been  absent,  was 
present,  perpetrating  independent  crimes.^ 

§  38.  When  as  a  defence  to  a  suit  for  an  injury  inflicted  by 
A.  on  B.  the  hypothesis  is  set  up  that  the  injury  was   gygteni 
accidental    or  the  result  of    casus,  it   is  admissible,  in    "'''-^  ^^^ 

'  ...  proved  to 

order  to  defeat  this  hypothesis,  to  show  that  similar  in-   rebut  hy- 

"^  '■  .  pothesis  of 

juries  were  inflicted  by  A.  on  B.,  or  on  other  parties,  to  accident  or 
an  extent  which  renders  the  hypothesis  of  accident  or 
casus  improbable.  "  When  there  is  a  question  whether  an  act 
was  accidental  or  intentional,  the  fact  that  such  act  formed  part 
of  a  series  of  similar  occurrences,  in  each  of  whicli  the  person 
doing  the  act  was  concerned,  is  relevant." '^  A  conspiciu)us  iUus- 
tration  of  this  rule  is  afforded  in  prosecutions  for  poisoning,  in 
which,  to  rebut  tlie  hypothesis  set  up  by  the  defeiulant  of  acci- 
dent, it  is  admissible  for  the  prosecution  to  show  that  the  defend- 
ant had  been  concerned  in  prior  fatal  operations  with  the  same 
or  similar  drugs.^  So  when,  to  an  indictment  for  malicious  shoot- 
ing, the   hypothesis  of   accident   is  set   up,  to    meet    this    it    is 

1  Taylor  v.  WiUans,    2    B.  &  Ad.         *  IWul 

845.  6  Siophen's   Kvidcin'C,  19.     Sec  II. 

2  See  Whart.  on  Ncg.  §§  2G-G9.  v.  Bleasdale,  2  C.  &  K.  7G8. 

*  K.  u.  li^ig^s,    2  M.    &   Rob.    199;         "  Sco    cases    given    in    Whart.    Cr. 
R.  V.  Rooney,  7  C.  &  P.  517.  Law,  §  635. 

47 


§  39.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

admissible  to  show  a  prioi-  intentional  shooting  of  the  prosecutor 
by  the  defendant.^ 

A  defendant,  to  take  another  case,  pleads  casus  in  answer  to  the 
charge  of  firing  his  house  in  order  to  defraud  the  insurers.  To 
meet  this  it  is  admissible  for  the  prosecution  to  prove  that  on  sev- 
eral prior  occasions  houses  occupied  by  the  defendant  had  been 
burned,  and  that  he  obtained  payment  for  the  same  from  separ- 
ate insurance  companies.^  In  the  same  line  may  be  mentioned  a 
New  York  ruling,  that  evidence  of  an  attempt  to  set  fire  to  a  barn, 
in  the  same  village,  and  on  the  same  night,  in  which  the  building 
in  litigation  was  burned,  is  admissible  on  the  issue  of  accident.^ 

§  o9.  We  may,  in  fine,  conclude  generally  that  when  a  mass  of 
^  action  is  examined  in  block,  it  is  allowable  to  assume, 

From  one  '  ... 

part  sinii-     as  a  prcsumptiou  of  fact,  that  if  a  part  of  it  is  tainted 

lar  quail-        .  .      ,  .  .  ,        rn, 

ties  in  in  a  particular  way,  the  rest  is  so  tainted.     Thus  where 

may  be  in-  most  of  the  voucliers  produced  by  a  party,  in  proving 
ferred.  ]^^g  accounts,  sliow  ail  Overcharging  of  items,  it  may  be 
inferred,  as  a  presumption  of  fact,  that  a  like  proportion  of  the 
items  not  vouched  are  overcharged.'* 

In  this  relation,  also,  may  be  mentioned  the  reception  in  evi- 
dence, in  cases  in  which  the  probable  value  of  a  life  estate  is 
concerned,  or  the  probable  duration  of  life  is  to  be  estimated, 
of  approved  scientific  calculations,  such  as  the  Carlisle  Tables. 
These  tables  are  based  on  an  induction  from  a  large  number  of 
particulars,  and  in  this  way  reach  a  general  rule  which,  for  busi- 
ness purposes,  is  assumed  to  apply  to  new  cases  that  may  arise.^ 
The  same  reasoning  supports  the  admission  of  evidence  based  on 
the  habits  of  men  generally.  These  habits  are  inferred  from  a 
large  number  of  particulars ;  and  in  this  way  a  general  rule  is 
reached  which  is  applied  to  a  new  particular  case.^  To  the  same 
effect  may  be  cited  the  ruling  already  given,  that  in  an  action  for 
fraudulently  representing  that  a  trader  was  trustworthy,  it  is  al- 
lowable for  the  defendant  to  call  fellow-townsmen  of  the  trader 
to  state,  that,  at  the  time  when  the  representation  was  made,  the 
man  was,  according  to  their  belief,  in  good  credit."     Again,  A., 

1  R.  V.  Voke,  R.  &  R.  531.  ^  gusji  ^^    Guion,  6  La.  An.  798. 

2  R.  V.  Gray,  4  F.  &  F.  1102.  s  See  infra,  §  667. 

3  Faucett  v.  Nichols,  N.  Y.   Ct.  of        ^  ]jifra,  §  i296. 

Appeals,   1876;  S.  C.  -1  N.  Y.    Sup.         ^  Sheen  i:  Bumstead,  1    H.  &  C. 
Ct.  ^97.  358;  aff.  2  H.  &  C.  193. 

48 


CHAP.  II.]  .  RELEVANCY.  [§  40. 

fXbeing  employed  to  pay  the  wages  of  B.'s  laborers,  is  required  to 
enter  in  a  book  the  specific  sums  paid  out.  The  book  is  found 
to  contain  one  item  overstating  the  amount  paid,  and  A.  is 
charged  with  making  a  fraudulent  entry.  It  is  relevant  for  the 
prosecution,  in  order  to  refute  accident,  to  show  that  for  a  period 
of  two  years  A.  had  made  other  similar  false  entries  in  the  same 
book,  all  the  errors  being  in  his  own  favor.^  So,  in  an  action  for 
an  assault  and  consequent  injury,  where  evidence  for  the  defence 
was  given  that  the  plaintiff  had  ascribed  her  injury  to  a  previous 
accident,  she  was  allowed  to  show  that  in  fact  no  such  accident 
had  ever  occurred.^  So,  where  a  hog,  when  trespassing  on  the 
defendant's  land,  was  shot  twice,  about  an  hour  intervening  be- 
tween the  shots,  and  the  defendant  was  seen  to  fire  the  second 
shot,  it  was  held  that  there  was  evidence  from  which  a  jury 
might  infer  that  he  fired  the  first  shot.^  So,  in  a  case  elsewhere 
noticed,  upon  the  question  arising  whether  the  acceptor  of  a  bill 
of  exchange  had  empowered  generally  the  drawer  to  draw  on  him 
in  favor  of  fictitious  persons,  it  was  held  admissible  to  show  that 
he  had  accepted  similar  bills,  drawn  in  like  manner,  under  cir- 
cumstances which  showed  he  must  have  inferred  the  payee  to  be 
fictitious.*  At  the  same  time  it  must  be  remembered  that  a 
party's  habits  in  doing  business  cannot  ordinarily  be  put  in  evi- 
dence to  show  that  he  did  a  certain  thing  in  a  particular  way.'^ 

§  40.  Ordinarily,  when  a  party  is  sued  for  damages  flowing 
from  negligence   imputed  to  him,  it  is  irrelevant,  for   soin 
reasons  already  given,  to  prove  against  him  other  dis-    of^iiei^U- 
connected  though  similar  negligent  acts.     Thus,  in  an   gence. 
action  against  a  bailee  for  the  loss  of  property  intrusted  to  hiui, 
evidence  of  independent  acts  of  negligence  not  connected  with 
the  loss,  is    inadmissible.^     So,   where    the    question,  in   a  suit 
against  a  railway  company,  is  whether  a  driver  was    negligent 
on  a  particular  occasion,  it  is  irrelevant  to  prove  that  he  had  been 
negligent  on  other  occasions.'^ 

^  Stephen's  Evidence,  20,  citing  R.  ^  Iron   Mountain    Hk.  v.  Munlork, 

V.  Richardson,  2  F.  &  F.  343,  G2  Mo.  70,    Supra,  §  2:». 

2  Mclhuish  V.  Collier,  15  Q.  B.  878,  <>  First  Nat.  Bank  of  Lyons  c.  Ocean 

8  Landell  v.    Ilotchkiss,  1   Thomp.  Nut.  Bank,  GO  N.  Y.  279. 

&  C.  (N.  Y.)  580.  "  "  The  only  error  tliat  occurred  in 

*  Gibson  v.  Hunter,  2  11.  Bl.  288.  the  trial  in  the  court  below  was  in  the 

4  49 


§41.] 


THE   LAW    OF    EVIDENCE. 


[book  I. 


§  41.  But  when  a  party  is  charged  with  the  negligent  use  of  a 
dangerous  agency,  and  when  the  case  against  liim  is  tliat  he  did 


admission  of  the  testimony  that  the 
driver  had  been  seen  on  several  pre- 
vious occasions  to  stop  the  car  sud- 
denly. The  plaintiff's  complaint  was 
that  in  conscciuencc  of  a  sudden  stop 
he  was  thrown  from  the  platform,  and 
injured  by  being  run  over. 

"  Tlie  question  for  the  jury,  suppos- 
ing he  had  satisfied  them  that  he  was 
in  the  exercise  of  due  care,  was  as 
to  the  exercise  of  the  like  degree  of 
care  on  the  part  of  the  defendant  at 
the  time  of  the  accident.  The  fact 
that  the  same  driver  had  at  some  other 
times  been  guilty  of  careless  or  un- 
skilful management  could  have  no 
legitimate  bearing  upon  the  question 
as  to  the  care  or  skill  exhibited  at  the 
time  in  controversy.  This  evidence 
was  objected  to,  and  the  plaintiff's 
counsel  appear  to  have  yielded  to  the 
objection,  and  to  have  proceeded  no 
further  in  this  line  of  inquiry.  It  is 
true  that  it  does  not  appear  that  it 
was  afterwards  alluded  to,  either  by 
the  counsel  or  the  court,  but  it  had 
been  given  in  the  trial,  and  we  do  not 
find  anywhere  any  instruction  to  the 
juiy  to  disregard  it.  It  is  impossible 
to  say  that  it  did  not  have  some  in- 
fluence upon  their  decision,  and  the 
case  therefore  comes  within  the  rule 
laid  down  in  Brown  v.  Cummings,  7 
Allen,  507.  See,  also,  Ellis  v.  Short, 
21  Pick.  142;  Farnuui  v.  Farnum,  13 
Gray,  508.  The  plaintiff  had  ceased 
to  pursue  the  inquiry,  but  the  evi- 
dence, so  far  as  he  had  gone,  was 
In,  against  the  defendant's  objection. 
The  only  way  to  prevent  tlie  jury  from 
regarding  it  as  legal  and  material  was 
to  give  them  a  distinct  ruling  that  it 
was  not  so,  and  this  does  not  appear 
to  have  been  done."  Ames,  J.,  Ma- 
guire  V.  Middlesex  Railroad  Co.  115 
Mass.  240. 

50 


So  in  an  action  against  a  town  to 
recover  for  injuries  caused  by  a  defect 
in  a  highway  which  the  town  is  bound 
to  keep  in  repair,  evidence  of  an  in- 
jury sustained  a  year  before,  at  the 
same  place,  by  a  third  person,  of 
which  the  town  had  notice,  is  inad- 
missible, especially  if  it  appears  that 
the  highway  has  been  in  the  same 
condition  for  twenty-four  hours  before 
the  injury  sued  for.  Blair  v.  Pelham, 
118  Mass.  420. 

"  The  evidence  of  what  happened 
at  the  same  place  the  year  before  was 
rightly  rejected,  because  it  tended  to 
raise  a  collateral  issue,  and  because, 
it  being  admitted  that  the  highway 
had  been  in  the  same  condition  for 
twenty-four  hours  before  the  injury 
now  sued  for,  the  previous  length  of 
time  for  which  it  had  existed  was  im- 
material. Aldrich  v.  Pelham,  1  Gray, 
510;  Payne  v.  Lowell,  10  Allen,  147." 
Gray,  C.  J.,  Blair  v.  Pelham,  118 
Mass.  420. 

To  this  effect  may  be  cited  the  fol- 
lowing opinion  of  the  supreme  court 
of  Missouri:  "  The  first  question  pre- 
sented by  the  record,  for  considera- 
tion in  this  court,  is  as  to  the  propri- 
ety of  the  action  of  the  court  in  per- 
mitting the  plaintiffs  to  prove  on  the 
trial  that  other  fires  had  happened 
along  the  line  of  the  defendant's  rail- 
road during  the  fall  of  the  year  1872, 
in  the  vicinity  of  the  place  where  the 
plaintiffs'  hay  was  burned,  which  was 
caused  by  the  escape  of  the  fire  from 
some  of  the  defendant's  engines. 

"  It  is  insisted  by  the  plaintiffs  that 
this  evidence  was  admissible  to  rebut 
the  evidence  of  the  defendant  tending 
to  prove  the  absence  of  negligence  on 
its  part.  The  evidence  in  the  case 
clearly  shows  that  if  the  fire  was  com- 
municated   to   the   plaintiffs'  hay  by 


CHAP.  II.] 


RELEVANCY. 


[§41. 


not  use  care  proportionate  to  the  danger,  then  the  question  be- 
comes material  whether  he  knew,  or  ought  to  have  known,  the 
extent  of  the  danger.  On  such  an  issue  as  this  it  is  relevant  for 
the  party  aggrieved  to  put  in  evidence  of  disconnected  acts,  of 
which  it  was  the  duty  of  the  defendant  to  have  been  cognizant, 
and  which,  if  he  were  cognizant  of  them,  would  have  advised 
him  of  the  extent  of  the  danger,  and  would  have  made  it  his 
duty  to  take  precautions  which  would,  if  faithfully  applied, 
have  prevented  the  injury  sued  for.     Thus,  in  an  action  against 

sparks  or  fire  escaping  from  the  de-  gent,  or  that  the  said  engine  was  in- 
fendant's  engine,  it  was  so  commu-  sufficient;  and  said  evidence  could  not 
nicated  from  engine  No.  6,  which  had     be  made  competent  by  the   attempt 


just  passed  the  place  when  the  fire 
was  discoA'ered.  The  evidence  in 
chief  of  the  only  witness  examined  on 
the  part  of  the  defendant  was  directed 
to  the  proof  of  facts,  to  show  that 
said  engine  No.  6  was  a  good,  safe 
engine,  which  was  supplied  with  the 
most  approved  '  spark  arresters,'  and 
that  it  was,  at  the  time  of  the  fire, 
manned  by  competent  and  careful  ser- 
vants, &c.  The  evidence  elicited  by 
the  cross-examination  of  the  witness 


thereby  to  rebut  evidence  which  was 
wholly  immaterial,  and  which  had 
been  elicited  by  the  plaintiffs.  The 
evidence  was  collateral,  and  ought  to 
have  been  excluded  by  the  court. 
Baltimore  &  Susquehanna  E,.  R.  Co. 
V.  Woodruff,  4  Md.  242,  and  cases 
there  cited. 

"  The  law  as  settled  in  this  state 
is,  that  where  it  is  proved  that  the 
property  was  destroyed  by  fire  escap- 
ing; from   the   defendant's    enirine,   a 


by  the  plaintiffs   elicited  the  fact  that    prima  facie  case  of  negligence  is  made 


all  the  locomotives  or  engines,  used 
on  the  defendant's  road,  were  pro- 
vided with  the  same  kind  of  '  spark 
arresters.'  The  plaintiffs,  in  order 
to  rebut  the  evidence  thus  brought 
out  by  themselves,  claim  that  they  had 
a  right  to  prove  that  other  fires  had 
occurred  along  the  railroad  of  defend- 
ant, caused  by  the  escape  of  fire  from 
some  of  the  defendant's  engines. 

"  This  evidence,  it  seems  to  me, 
was  collateral  to  the  issues  in  the 
case.  To  prove  that  some  one  of  de- 
fendant's engines  was  insufficient,  or 
that  the  hands  on  some  of  said  engines 
had  so  carelessly  conducted  the  same 
as  to  permit  the  escape  of  fire,  is  not 
competent  evidence  to  prove  that  the 
persons  conducting  engine  No.  fi,  on 
the  20tli  of  October,  1872,  were  ncgli- 


out,  that  the  burden  is  then  thrown 
on  the  defendant,  by  its  evidence,  to 
rebut  the  presumption  of  negligence 
by  showing  the  absence  of  negligence. 
Whether  this  is  done  by  the  evidence 
is  a  question  for  the  jury,  which  can 
be  decided  by  them  without  shifting 
the  burden  from  one  party  to  the 
other,  as  the  evidence  prop^resses, 
and  as  seems  to  be  contemplated  by 
the  instruction  refused.  Bedford  v. 
Hann.  &  St.  Jo.  R.  R.  Co.  4G  Mo. 
4  ")6 ;  Clemens  v.  Ilann.  &  St.  Jo.  R. 
R.  Co.  53  Mo.  3GCy,  and  cases  cited." 
Vories,  J.,  Coale  v.  Hann.  &  St.  Jo. 
R.  R.  Co.  60  Mo.  232. 

See,  to  same  effect,  Lester  v.  11.  R. 
decitled  by  the  same  court,  and  re- 
ported in  Cent.  Law  Jour.,  Oct.  1 
1875. 

61 


§  43.]  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

a  railroad  company  for  injuries  sustained  from  a  ear  running  off 
the  track,  evidence  has  been  received  to  prove  seven  or  eight 
runnings  off  the  track  on  the  same  road,  by  the  same  line  of 
cars,  in  the  previous  month.^  So,  in  a  suit  by  A.  against  B.  for 
damages  to  A.  through  a  ferocious  dog  negligently  kept  by  B., 
it  has  been  held  relevant  for  A.  to  show  that  the  dog  had  pre- 
viously bitten  X.,  Y.,  and  Z.,  and  that  they  had  complained  to 
B.  of  their  hurts  so  sustained. ^ 

§  42.  If  the  plaintiff  should  prove  that  his  house  was  fired  by 

sparks  emitted   by  engine   No.  1,  on   the  defendants' 

of  prior       road,  is  it  relevant  for  him  to  show  that  in  a  series  of 

firing's 

froni'same  former  occasions,  sparks  were  emitted  by  the  same  en- 

reiel"aut  in  gi^^^  i^^  such   masses  as  to  fire  other  property  ?     For 

against  *^®  reasons  just  stated,  we  must  hold  such  evidence  to 

railroad  for  be  relevant.    The  fact  that  the  ensrine  has  frequently 

fires.  c"  X  J 

caused  damage  of  this  kind,  indicates  defects  in  its  con- 
struction which  impose  upon  its  owner,  if  not  its  condemnation, 
at  least  the  exercise  of  peculiar  care  both  in  its  repair  and  its 
management ;  and  that  such  care  was  applied,  the  burden,  after 
proof  of  frequent  fires  caused  by  the  same  engine,  is  on  him  to 
show.  On  the  other  hand,  suppose  that  after  the  plaintiff  proves 
a  firing  from  engine  No.  1,  he  offers  to  show  a  series  of  prior  fir- 
ings from  engines  Nos.  2,  3,  4,  5,  and  6,  without  offering  to  show 
that  there  was  such  identity  of  construction  of  the  engines  as  a 
mass  as  to  make  it  probable  that  the  defects  in  engines  Nos.  2,  3, 
4,  5,  and  6,  existed  in  engine  No.  1.  In  such  case  the  proof  of  fir- 
ing from  any  other  engine  than  No.  1  would  be  as  irrelevant, 
as,  in  an  action  by  A.  for  hurt  from  a  kick  of  a  horse  belonging 
to  B.,  it  would  be  irrelevant  to  show  that  on  other  distinct  occa- 
sions other  horses  of  B.  had  kicked  C,  D.,  and  E.^ 

§  43.  Suppose,  however,  that  when  evidence  of  prior  firing  by 

1  Mobile  R.  R.  v.  Ashcroft,  48  Ala.  ley  v.  Leonard,  4  Denio,  500 ;  Cock- 
15.  erliam  v.  Nixon,  11  Ired.  L.  269;  Mc- 

2  Stephen's    Evidence,    17,    citing  Caskill  r.  Elliot,  5  Strobh.  196;  Kee- 
Roscoe's  Nisi  Prius,  739;  Whart.  on  nan  v.  Harden,  39  Wise.  558. 

Neg.  912;  Worth  v.  Gilling,  L.  R.  2  C.  «  Erie  R.  R.  i-.   Decker,   78  Penn. 

P.  1;  Kittredge  U.Elliott,  16  N.H.  77;  St.   293.     See  Waugh  v.    Shunk,    20 

Whittier  v.  Franklin,  46  N.  H.  23;  Penn.   St.  130;  Carson  u.  Godley,  26 

Arnold  v.  Norton,  25  Conn.  92;  Buck-  Penn.  St.  111. 

52 


CHAP.  II.]  RELEVANCY.  [§  43. 

certain  specified  engines  is  offered,  there  is  no  identification,  on 
tlie  part  of  the  plaintiff,  of  tlie  engine  by  which  the  fire  was 
emitted ;  or  suppose  that  though  that  particular  engine  is  identi- 
fied, there  is  no  identification  of  the  engines  causing  the  prior 
fires,  is  the  evidence  relevant  ?  We  have  now  to  touch  a  ques- 
tion of  probabilities  which  has  already  been  noticed ;  and  we  may 
adduce,  in  explanation,  the  same  illustration.  Although  there 
were  one  hundred  thousand  people  of  a  particular  class  at  a  par- 
ticular place  at  a  particular  time,  yet  it  is  relevant  to  prove  that 
A.  was  at  that  place  at  that  time,  when  the  question  is  whether 
A.  did  something  that  could  only  have  been  done  at  that  place 
and  time.  So,  when  an  offer  is  made  of  a  series  of  firings  from 
a  series  of  unidentified  locomotives  on  the  same  road,  such  offer 
is  relevant  as  one  of  the  conditions  of  an  hypothesis  which 
charges  a  particular  locomotive  with  the  firing.  Of  weight,  if 
disconnected  with  other  evidence,  it  cannot  be  ;  relevant,  for  the 
reasons  just  stated,  it  certainly  is.  "  The  third  assignment  of 
error,"  so  speaks  Mr.  Justice  Strong,  in  giving  an  opinion  to  this 
effect  in  the  supreme  court  of  the  United  States  in  1876,^  "  is 
that  the  plaintiffs  were  allowed  to  prove,  ■  notwithstanding  ob- 
jection by  the  defendants,  that  at  various  times  during  the  same 
summer,  before  the  fire  occurred,  some  of  the  defendants'  loco- 
motives scattered  fire  when  going  past  the  mill  and  bridge,  with- 
out showing  that  either  of  those  which  the  plaintiffs  claimed 
communicated  the  fire  were  among  the  number,  and  without 
showing  that  the  locomotives  were  similar  in  their  make,  their 
state  of  repair,  or  management  to  those  claimed  to  have  caused 
the  fire  complained  of.  The  evidence  was  admitted  after  the 
defendants'  case  had  closed.  But  whether  it  was  strictly  rebut- 
ting or  not,  if  it  tended  to  prove  the  plaintiffs'  case,  its  admission 
as  rebutting  was  within  the  discretion  of  the  court  below  and 
not  reviewable  here.  The  question,  therefore,  is,  whether  it 
tended  in  any  degree  to  show  that  the  burning  of  the  bridge 
and  the  consequent  destruction  of  the  plaintiffs'  property  was 
caused  by  any  of  the  defendants'  locomotives.  The  question 
has  often  been  considered  by  the  courts  in  this  country  and  in 
England,  and  such  evidence  has,  we  tliink,  been  generally  held 

1  Grand  Trunk  R.  R.  v.  Ricbardson,  91  U.  S.  (1  Otto)  454. 

53 


§43.] 


THE    LAW   OF   EVIDENCE. 


[book  I. 


admissible  as  tending  to  prove  the  possibility  and  a  consequent 
probability  that  some  locomotive  caused  the  fire,  and  as  tending 
to  show  a  negligent  habit  of  the  officers  and  agents  of  the  rail- 
road company."  ^  Or  again  :  if  the  defendants  should  set  up  the 
hypothesis  of  casus,  or  of  one  of  those  occasional  mechanical 
aberrations  which  due  diligence  cannot  exclude,  then  it  is  rele- 
vant to  show,  as  militating  against   this  hypothesis,  that  other 


^  As  concurring  in  this  conclusion 
may  be  cited  :  Aldridge  v.  R.  R.  3 
Man.  &  G.  515;  Piggott  v.  R.  R.  3 
C.  B.  229  ;  Boyce  f.  R.  R.  42  N.  H. 
97;  43  N.  H.  627;  Cleaveland  v.  R. 
R.  42  Vt.  449;  Sheldon  v.  R.  R.  14  N. 
Y.  218;  Field  v.  R.  R.  32  N.  Y.  339  ; 
Westfall  V.  R.  R.  5  Hun.  (N.  Y.)  75 ; 
Huyett  V.  R.  R.  23  Penn.  St.  373  ;  R. 
R.  V.  McClelland,  42  111.  358  ;  St.  Jos. 
R.  R.  V.  Chase,  1 1  Kans.  4  7  ;  Longa- 
baugh  V.  R.  R.  9  Nev.  271 ;  Penns.  R. 
R.  V.  Stranahan,  32  Leg.  Int.  449;  2 
Weekly  Notes,  215.  In  the  last  case, 
the  plaintiff's  barn,  situate  100  feet 
from  the  railroad  track,  was  destroyed 
by  fire,  which,  it  was  proved,  had 
spread  along  the  ground  from  the  track 
to  the  barn.  In  the  absence  of  any 
evidence  tracing  the  cause  of  the  fire 
to  any  particular  engine,  the  court  be- 
low admitted  evidence,  offered  by  the 
plaintiff  under  objection,  to  show  that 
at  a  distance  of  twenty  miles  from 
plaintifl"'s  property  various  locomotives 
of  defendant  had  cast  large  sparks 
which  had  caused  other  fires  near  the 
line  of  the  road.  It  was  held  that 
the  evidence  was  receivable.  "  This 
was  not  a  case,"  said  the  court,  "  where 
a  certain  engine  had  thrown  out  the 
sparks  which  set  fire  to  the  plaintiff's 
barn,  but  it  was  one  where  the  engine 
was  unknown,  yet  the  cause  of  the  fire 
was  clearly  traced  to  the  railroad  track, 
and  left  the  belief  that  some  one  of  the 
engines  of  the  defendants  had  emitted 
the  coals  which  set  the  barn  on  fire. 
It,  therefore,  became  necessary  to  es- 

54 


tablish  the  fact  by  such  proof  as  ren- 
dered the  belief  a  certain  fact.  This 
could  be  done  not  by  the  proof  that  a 
certain  engine  emitted  sparks  unusu- 
ally ;  non  constat  that  this  particular 
engine  had  passed  the  plaintiff's  prem- 
ises on  that  day.  Hence  it  was  neces- 
sary to  permit  the  i^arty  to  show  that 
the  emitting  of  coals  and  sparks  in 
unusual  quantities  was  frequent,  and 
permitted  to  be  done  by  a  number  of 
engines.  The  range  of  the  evidence 
in  this  respect  of  necessity  carried  it 
to  a  greater  range  as  to  locality  also." 
In  Maryland,  this  conclusion  was  at 
one  time  disapproved.  Bait.  R.  R.  v. 
Woodruff,  4  Md.  242.  But  more  re- 
cently, in  an  action  against  a  railroad 
comj)any  for  so  negligently  managing 
one  of  its  engines,  that  certain  cord- 
wood  and  growing  timber  of  the  plain- 
tiff, whose  land  adjoined  the  road,  was 
destroyed  by  fire  emitted  from  the  en- 
gine, the  plaintiff,  for  the  purpose  of 
proving  that  the  fire  in  question  was 
occasioned  by  the  defendant's  engine, 
and  as  tending  to  prove  negligence  on 
the  part  of  the  defendant  in  the  con- 
struction and  management  of  its  en- 
gines, maj'  show  that,  within  a  week 
before  the  fire  in  question,  the  engines 
of  the  defendant  in  passing  had  scat- 
tered large  sparks  which  were  capable 
of  setting  fire  to  combustible  articles 
along  the  road,  and  that  frequent  fires, 
occasioned  by  such  sparks,  had  been 
put  out  within  that  time.  Annap.  R. 
R.  V.  Gantt,  39  Md.  115. 


CHAP.  11.] 


RELEVANCY, 


[§  43. 


engines,  constructed  on  the  same  general  system  as  that  by 
which  the  engine  occasioning  the  fire  was  constructed,  had 
emitted  sparks  to  an  extent  from  which  negligence  in  the  con- 
struction of  the  engines,  if  not  in  the  care  of  them,  may  be  in- 
ferred.^    To   meet  another  probable  hypothesis  such  evidence 


1  In  Sheldon  v.  R.  R.  14  N.  Y.  221, 
above  cited,  Denio,  J.,  said  :  "I  think, 
therefore,  it  is  competent  prima  facie 
evidence,  for  a  person  seelcing  to  es- 
tablish the  responsibility  of  the  com- 
pany for  a  burning  upon  the  track  of 
the  road,  after  refuting  every  other 
probable  cause  of  the  fire,  to  show  that, 
about  the  time  when  it  happened,  the 
trains  which  the  company  were  run- 
ning past  the  location  of  the  fire  were 
so  managed  in  respect  to  the  furnaces 
as  to  be  likely  to  set  on  fire  objects  not 
more  remote  than  the  property  burned. 
....  The  evidence  ....  not  only 
rendered  it  probable  that  the  fire  was 
communicated  from  the  furnace  of  one 
of  the  defendant's  engines,  but  it 
raises  an  inference  of  some  weight 
that  there  was  something  unsuitable 
and  improper  in  the  construction  or 
management  of  the  engine  which  caused 
the  fire."  And  see  Hinds  v.  Barton, 
29  N.  Y.  544 ;  Field  v.  N.  Y.  Cent.  R. 
R.  Co.  32  N.  Y.  339;  Webb  v.  R.  AV. 
&  O.  R.  R.  Co.  49  N.  Y.  424. 

In  Longabaugh  v.  The  Virginia,  &c. 
R.  R.  Co.  9  Nevada,  271,  it  was 
said:  "  What  are  the  facts  of  this 
case?  Plaintiff's  wood  caught  fire  in 
some  manner,  to  him,  at  the  time  un- 
known. How  did  the  fire  originate? 
This  was  the  first  question  to  be  estab- 
lished in  the  line  of  proof.  Positive 
testimony  could  not  be  found.  The 
plaintiff  was  compelled,  from  the  ne- 
cessities of  the  case,  to  rely  upon  cir- 
cumstantial evidence.  What  does  he 
do?  He  first  shows,  as  in  the  New 
York  case,  the  improbabilities  of  the 
fire  having  originated  in  any  other 
way  except  from  coals  droi)ping  from 


the  defendant's  engines.  lie  then 
shows  the  presence,  in  the  wood-yard, 
of  one  of  the  engines  of  the  defend- 
ant, within  half  an  hour  prior  to  ther 
breaking  out  of  the  fire.  Then  proves 
that  fires  have  been  set  in  the  same 
Avood-yard  within  a  few  weeks  prior 
to  this  time,  from  sparks  emitted  from 
defendant's  locomotives.  I  think  such 
testimony  was  clearly  admissible,  un- 
der the  particular  facts  of  this  case, 
upon  the  weight  of  reason  as  well  as 

of    authorities The   evidence 

was  admissible,  as  tending  to  show  a 
probable  cause  of  fire,  and  to  prevent 
vague  and  unsatisfactory  surmises  on 
the  part  of  the  jury.  Upon  the  ques- 
tion of  negligence,  it  was  admissible 
as  tending  to  prove  that  if  the  engines 
were,  as  claimed  by  defendant,  prop- 
erly constructed  and  supplied  with 
the  best  appliances  in  general  use, 
they  could  not  have  been  properly 
managed,  else  the  fires  would  not  have 
occurred.  Thei'e  is  not,  in  my  judg- 
ment, any  substantial  reason  for  the 
objection  urged  to  this  testimony,  on 
the  ground  that  it  referrcil  to  other 
engines  than  the  one  shown  to  be 
present  on  the  day  of  the  fire.  The 
business  of  running  the  trains  on  a 
railroad  supposes  a  unity  of  manage- 
ment and  general  similarity  in  the 
fashion  of  the  engines  and  char- 
acter of  their  operation."  And  in 
the  same  case  it  was  held  proper  to 
follow  up  the  evidence  of  fires  about 
the  time  of  that  complained  of  with 
evidence  of  fires  e.xteivding  back  over 
a  period  of  four  years.  The  court 
citing,  with  approbation,  the  language 
of  Davis,  J.,  in  Field  v.  N.  Y.  Cent. 


§  44.] 


THE   LAW   OF  EVIDENCE. 


[book  I. 


may  be  relevant.  It  may  be  maintained  by  the  defendants  that 
the  object  fired  was  beyond  the  reach  of  sparks  from  their  en- 
gine. In  answer  to  this  it  has  been  held  relevant  for  the  plain- 
tiff to  prove  that  a  short  time  before  the  defendants'  engines, 
when  passing  the  same  point,  emitted  sparks  which  fell  further 
than  the  building  for  whose  firing  the  plaintiff  sues.^ 

§  44.  The  rule  that  when  a  system  is  established,  the  condi- 
tions of  other  members  of  the  system  may  be  proved  to 
affect  the  case  in  court,  has  been  further  illustrated  in 
cases  in  which  the  customs  of  one  manor  are  put  in 
evidence  to  affect  other  manors  of  the  same  system, 
of  the  same    -^q  yyy\Q  ig  better  established,  or  more  frequently  acted 

system  -^  "^ 

may  be        upon,  than    that  which    precludes  the  customs  of  one 
manor  from  being  given  in  evidence  to  prove  the  cus- 


When  sys 
teni  is 
proved, 
conditions 
of  other 
members 


R.  K.  Co.  32  N.  Y.  339  :  "  The  more 
frequent  these  occurrences,  and  the 
longer  time  they  had  been  apparent, 
the  greater  the  neghgence  of  the  de- 
fendant, and  such  proof  would  disarm 
the  defendant  of  the  excuse  that  on 
that  particular  occasion  the  dropping 
of  fire  was  an  unavoidable  accident." 
A  witness  was  permitted  to  testify 
that  she  had  seen  fire  on  the  defend- 
ant's track  four  weeks  after  the  fire 
complained  of.  This  fire  was  caused 
by  coals  dropped  from  another  engine. 
It  was  held  that  this  evidence  was 
properly  admitted.  The  court  said: 
"  Certainly  such  testimony  would  have 
been  admissible  if  directed  against  the 
'  I.  E.  James,'  the  offending  engine. 
But  there  is  no  pretence  that  the  '  I.  E. 
James  '  is  differently  constructed  from 
the  '  Reno,'  or  any  other  locomotive 
on  defendant's  road;  or  that  any  dif- 
ferent appliances  are  used  to  prevent 
the  emission  of  sparks  from  the  smoke- 
stack, or  the  dropping  of  coals  from 
the  ash-pan.  It  was  within  the  power 
of  defendant,  which  must  necessarily 
have  intimate  relations  with  all  its 
engineers,  conductors,  and  employees, 
to  pi'ove  these  facts,  if  they  existed. 
The  onus  probandi  is  upon  the  defend- 

56 


ant.  If  one  or  more  of  its  engines 
drops  coals  from  its  ash-pan,  or  emits 
sparks  and  cinders  from  its  smoke- 
stack just  prior  to  or  soon  after  prop- 
erty on  the  line  of  its  track  has  been 
destroyed  by  fire  without  any  known 
cause  or  circumstance  of  suspicion  be- 
sides the  engines,  it  becomes  incum- 
bent upon  the  railroad  company  to 
show  that  their  engines  were  not  the 
cause."  See  a  learned  article  in  Cent. 
Law  J.  for  Oct.  1,  1875,  from  which 
the  last  summary  is  taken. 

1  Ross  V.  R.  R.  6  Allen,  87;  Shel- 
don «.  R.  R.  14  N.  Y.  218;  Burke  v. 
R.  R.  7  Hiesk.  451.  See  Piggott  i;.  R. 
R.  10  Jurist,  571;  3  C.  B.  229;  Al- 
dridge  v.  R.  R.  3  M.  &  G.  515. 

In  Rhode  Island,  "  in  an  action 
against  a  railroad  company  for  burning 
the  plaintiff's  property  by  sparks  from 
their  locomotive,  evidence  that  fires  on 
the  line  of  the  road  have  originated 
from  sjjarks  escaping  from  defendants' 
locomotives  before  the  occurrence  of 
the  one  in  question,  is  ruled  relevant, 
in  order  to  enable  the  jury  to  judge 
whether  the  defendants,  in  view  of  the 
previous  occurrence  of  such  fires,  ex- 
ercised reasonable  care  at  the  time- 
this  one  happened;  but   evidence  of 


CHAP.  II.]  EELEVANCY.  [§  44. 

toms  of  another  ;  because,  as  each  manor  may  have  customs  pe- 
culiar to  itself,  to  receive  the  peculiar  customs  of  another  manor, 
in  order  to  show  the  customs  of  the  manor  in  question,  would  be 
inadmissible  as  a  disconnected  fact,  by  the  rule  above  stated, 
and  would  put  an  end  to  all  question  as  to  the  peculiar  cus- 
toms in  particular  manors,  by  throwing  them  open  to  the  cus- 
toms of  all  surrounding  manors.^  But  whenever  a  connection 
between  the  manors  is  proved,  such  customs  become  admissible. 
It  is  not  enough,  it  is  true,  to  show  merely  that  the  two  lie 
within  the  same  parish  and  leet ;  nor  even  that  the  one  was  a 
subinfeudation  of  the  other  ;  at  least,  unless  it  be  clearly  shown 
that  they  were  separated  after  the  time  of  legal  memory,  since 
otherwise  they  may  have  had  different  immemorial  customs.^ 
On  the  other  hand,  the  customs  of  manors  become  reciprocally 
admissible  if  it  can  be  proved  that  the  one  was  derived  from  the 
other  after  the  time  of  Richard  the  First ;  ^  and  it  has  been  also 
held  that  if  the  customs  in  question  be  a  particular  incident  of 
the  general  tenure  which  is  proved  to  be  common  to  the  two 
manors,  evidence  may  be  given  of  what  the  custom  of  the  one  is 
as  to  that  tenure,  for  the  purpose  of  showing  what  is  the  custom 
of  the  other  as  to  the  same.*     We  will  elsewhere  see  that  value 

fires  occurring  from  this  cause  subse-  plained  by  Rolfc,  B.,  in  10  M.  &  W. 

(juently  to  the  one  in  question  is  held  246,  247. 

inadmissible,  unless  the  possibility  of        For   the  above   illustration   of  the 

communicating  fire  by  sparks  from  a  important  principle  that  when  system 

locomotive  is  disputed  by  the  defend-  is  proved,  the  pertinent  incidents  of 

ants,  in  which  case   it  is  admissible  other  members  of  the  system  are  rele- 

solely  for  the  purpose  of  proving  such  vant,  I  am   indebted  to   Mr.    Taylor 

possibility."     Smith  v.  O.  C.  &  N.  R.  (Ibid.  §  300),  who  adds:  "  The  manors 

R.  Co.  10  R.  I.  22.  on  the  border  between  England  and 

1  M.  of  Anglesey  v.  Ld.  Ilatherton,  Scotland  (Rowe  v.  Parker,  5  T.  R.  31 ; 
■  10  M.   &   W.  235,  per  Ld.  Abinger;  Ld.  Kenyon),  and  those  in  the  mining 

Furneaux  V.  Hutchins,   2   Cowp.  807;  districts  of  Derbyshire  and  Cornwall, 

Doe  V.  Sisson,  12  East,  62;  Taylor's  Avill  furnish  other  examples  of  the  ap- 

Ev.  §  300.  plication  of  this  rule;   since,  through- 

2  M.  of  Anglesey  v.  Ld.  Ilatherton,  out  the  former,  a  particular  species  of 
10  M.  &  W.  218.  tenure  called  tenant-right,  and  in  the 

8  Ibid.  242,  243,  per  Alderson,  B.  latter,    particular  customs,   as  to  the 

*  Ibid.;  Stanley  v.  White,  14   East,  rights  of  the  miners  and  the  rights   to 

338,  341,342,  per  Ld.  Ellenborough  ;  the  minerals,  prevail;  and  consequent- 

R.  V.  Ellis,  1  M.  &  Sel.  662,  per  Ibid.;  ly,  if  in  one  of  the  manors  no  cKamplc 

D.  of   Somerset  r.  France,  1   Str.  654;  can  be  adduced  of  what  is  the  custom 

Champian  v.  Atkinson,  3  Keb.  90;  ex-  in  any  particular  case,  it  is  only  rca- 

67 


§  45.]  THE  LAW   OF  EVIDENCE.  [BOOK  I. 

at  one  place  can  be  used  to  infer  value  at  another  place  when 
the  two  places  are  shown  to  belong  to  the  same  sj'^stem.i  So, 
on  the  same  reasoning,  the  mode  of  conducting  a  particular 
branch  of  trade  in  one  place  has  been  proved  by  showing  the 
manner  in  which  the  same  trade  is  carried  on  in  another  place.^ 
So  a  geological  system  being  established,  physical  peculiarities 
of  one  member  of  the  system  are  relevant  as  to  other  members. 
Thus  on  a  question  as  to  the  exact  line  of  boundary  between 
the  manors  of  Wakefield  and  Rochdale,  which  the  plaintiff  con- 
tended was  the  ridge  of  a  mountain,  whence  the  waters  descended 
in  opposite  directions,  he  was  allowed  to  prove,  in  support  of 
this  view,  that  the  ridge  of  the  same  range  of  hills  separated  the 
manor  of  Rochdale  from  another  manor  which  adjoined  the 
manor  of  Wakefield  ;  because  this  being  a  natural  boundary, 
which  was  equally  suitable  in  both  cases,  it  was  highly  improb- 
able that  it  should  have  been  varied.^  Perhaps  on  this  ground 
we  may  sustain  a  contested  New  Hampshire  ruling  where  it  was 
held  admissible,  in  order  to  show  that  a  particular  horse  was 
frightened  at  a  certain  object,  to  prove  that  other  horses  were 
frightened  at  the  same  object.^ 

§  45.  Even  ownership  may  be  thus  inferred.     Thus,  upon  a 
question  whether  a  slip  of  waste  land,  lying  between  the  high- 

sonable  tliat,  in  oi-der  to  explain  the  This  last  case,  indeed,  raised  no  ques- 
nature  of  tlie  tenure  or  right  in  ques-  tion  as  to  manorial  title  ;  for  had  there 
tion,  which  is  not  confined  to  a  single  been  no  manor  at  all,  precisely  the 
manor,  but  prevails  equally  in  a  great  same  evidence  -would  have  been  ad- 
number,  evidence  should  be  admissible  missible,  provided  the  land  had  been 
to  show  what  is  the  general  usage  with  all  held  under  the  assessional  tenure, 
respect  to  that  tenure  or  right.     M.  of  Per  Ld.  Abinger,  in  M.  of  Anglesey 
Anglesey  V.  Ld.  Hatherton,    10  M.  &  v.  Ld.  Hatherton,   10   M.   &  W.   237, 
W.    237,  per   Lord    Abinger.     Thus,  238.     See,  also,   Jewison  i'.  Dyson,  9 
where  in  each  of  several  manors  be-  M.  &  W.  540.     See  Fleet  v.  Murton, 
longing  to  the  same  lord,  and  forming  41  L.  J.  Q.  B.  49." 
part  of  the  same  district,  a  particular  ^  See  iufra,  §  1290. 
class  of  tenants  called  assessional  ten-  -  Noble  v.  Kennoway,  2  Doug.  510; 
ants  held  the  farms,  to  whom   their  Taylor's  Ev.  §  302. 
tenements    were   granted    by   similar  s  Brisco  v.  Lomax,  8   A.  &E.  198; 
wordo,  evidence  of  the  rights  enjoyed  3  N.  &  P.  388,  S.  C. 
by  those  tenants  in  one  manor  was  re-  *  Darling  v.  Westmoreland,  52  N. 
ceivea,,^to   show  the  extent  of   their  H.   401  ;    contra,    Hawks   i-.    Charle- 
rights  in  another.     Howe  v.  Brenton,  mont,    110    Mass.     110.      See    infra, 
8  B.  &  C.  758  ;  3  M.  &  R.  361,  S.  C  §  1295. 

58 


CHAP.  II.] 


RELEVANCY. 


[§45. 


Ownership 
may  be  in- 
ferred 
from  sj-s- 
tem. 


way  and  the  inclosed  lands  of  the  plaintiff,  belonged  to  him,  or 
to  the  lord  of  the  manor,  it  was  held  that  tlie  lord  might 
give  evidence  of  acts  of  ownership  on  other  parts  of  the 
waste  land  between  the  same  road  and  the  inclosnres  of 
other  persons,  although  at  the  distance  of  two  miles 
from  the  spot  in  dispute,  and  althougli  the  continuity  of  the 
waste  was  interrupted  for  the  space  of  some  sixty  or  seventy 
yards  by  the  intervention  of  a  bridge,  and  some  old  houses.^  It 
has  also  been  held  that  where  in  trespass  the  object  of  the  plain- 
tiff was  to  prove  himself  the  owner  of  the  entire  bed  of  a  river 
flowing  between  his  land  and  that  of  the  defendant,  and  thus  to 
rebut  the  presumption  that  each  party  was  entitled  ad  medium 
filum  aquae^  he  was  at  liberty  to  give  in  evidence  acts  of  ownership 
exercised  by  himself  upon  the  bed  and  banks  of  the  river  on  the 
defendant's  side,  lower  down  the  stream,  wliere  it  flowed  between 
the  plaintiff's  hind  and  the  farm  of  a  third  party,  adjoining  the 
defendant's  property  ;  and  that  he  could  also  prove  repairs  which 
he  liad  done,  beyond  the  limits  of  the  defendant's  land,  to  a  fence 
wliicli,  dividing  that  and  other  land  from  the  river,  ran  along  the 
side  of  the  stream  for  a  considerable  distance,  till  it  came  opposite 
to  the  extremity  of  the  plaintiff's  property  on  the  other  side.^ 

^  Doe   I".    Kemp,    7    Bing.    332;    2  to  the  plaintiff.     Ownership   may  be 

Bin'i;.   N.    C.    102;  2    Scott,  9,  S.  C,  proved   by   proof  of   possession,    and 

refotjnized  by  Parke,  B.,  in  Jones  v.  that  can  be  shown  by  acts,  of  enjoy- 

Willianis,  2  M.  &  \V.  327,  328;  Bryan  ment  of  the  hind  itself;  but  it  is.iui- 

V.  Winwood,  1   Taunt.  208  ;  Dendy  v.  possible,    in  the  nature  of  things,  to 

Simpson,  18  Com.  B.  831.  confine  the  evidence  to  the  very  pre- 

2  Taylor's  Ev.  §  303,  from  which  cise  spot  on  which  the  alleged  trespass 
the  recapitulation  of  the  above  cases  may  have  been  committed;  evidence 
is  mainly  taken  ;  .Jones  v.  Williams,  2  may  be  given  of  acts  done  on  other 
M.  &  W.  32G.  In  Jones  v.  Williams,  parts,  provided  there  is  such  a  com- 
Parke,  B.,  said  :  "I  am  also  of  opin-  mon  character  of  locality  between 
ion  that  this  case  ought  to  go  down  to  those  parts  and  the  spot  in  question 
a  new  trial,  because  I  think  the  evi-  as  would  raise  a  reasonable  inference 
dence  offered  of  acts  in  another  part  in  the  minds  of  the  jury  that  the  place 
of  one  continuous  hedge,  and  in  the  in  dispute  belonged  to  the  plaintiff  if 
whole  bed  of  the  river,  adjoining  the  the  other  parts  did.  In  ordinary  cases, 
plaintiff's  land,  was  admissible  in  evi-  to  prove  his  title  to  a  close,  the  claim- 
dence,  on  the  ground  that  they  are  ant  may  give  in  evidence  acts  of  own- 
such  acts  as  might  reasonably  lead  to  ership  in  any  part  of  the  same  indos- 
the  inference  that  the  entire  hedge  ure ;  for  the  owne^^hip  of  one  part 
and  bed  of  the  river,  and.  conse-  causes  a  reason.able  inference  that  the 
qucntly,  the  part  in  dispute,  belonged  other   belongs    to    the    same    person  ; 

59 


§46.] 


THE   LAW   OF   EVIDENCE, 


[book  I. 


§  46.  Relevancy  in  sucli  case  depending  on  system,  the  court 
must  first  determine  as  a  prerequisite  to  relevancy,  whether  there 
is  such  a  relation  between  the  case  in  court  and  the  case  pro- 
posed as  a  test  as  to  make  it  probable  that  the  incidents  of 
the  one  belong  to  the  other.^  Thus,  where  it  was  attempted  to 
connect  parcels  of  waste  land  with  each  other,  merely  by  showing 
that  they  all  lay  within  the  same  manor,  and  between  inclosures 
and  public  roads,  it  was  held  that  evidence  of  acts  of  ownership 
over  some  of  these  lands  was  inadmissible  to  prove  title  to  the 
others.2 


though  it  by  no  means  follows  as  a 
necessary  consequence,  for  different 
persons  may  have  balks  of  land  in  the 
same  inclosure ;  but  this  is  a  fact  to 
be  submitted  to  the  jury.  So,  I  ap- 
prehend, the  same  rule  is  applicable  to 
a  wood  which  is  not  inclosed  by  any 
fence  ;  if  you  prove  the  cutting  of 
timber  in  one  part,  I  take  that  to 
be  evidence  to  go  to  a  jury  to  prove 
a  right  in  the  whole  wood,  although 
there  be  no  fence,  or  distinct  bound- 
ary, surrounding  the  whole ;  and  the 
case  of  Stanley  r.  White,  14  East,  332, 
I  conceive  is  to  be  explained  on  this 
principle :  there  was  a  continuous  belt 
of  trees,  and  acts  of  ownership  on  one 
part  were  held  to  be  admissible  to 
prove  that  the  plaintiff  was  the  owner 
of  another  part,  on  which  the  trespass 
was  committed.  So,  I  should  apply 
the  same  'reasoning  to  a  continuous 
hedge ;  though  no  doubt  the  defend- 
ant might  rebut  the  inference  that  the 
whole  belonged  to  the  same  person,  by 
showing  acts  of  ownership  on  his  part, 
along  the  same  fence.  It  has  been  said 
in  the  course  of  the  argument,  that  the 
defendant  had  no  interest  to  dispute 
the  acts  of  ownership  not  opposite  his 
own  land ;  but  the  ground  on  which 
such  acts  are  admissible  is  not  the  ac- 
quiescence of  any  party ;  they  are  ad- 
missible of  themselves  propria  vigore, 
for  they  tend  to  prove  that  he  who  does 
them  is  the  owner  of  the  soil ;  though 

60 


if  they  are  done  in  the  absence  of  all 
persons  interested  to  dispute  them, 
they  are  of  less  weight.  That  obser- 
vation applies  only  to  the  effect  of  the 
evidence.  Applying  that  reasoning  to 
the  present  case,  surely  the  plaintiff, 
who  claims  the  whole  bed  of  the  river, 
is  entitled  to  show  the  taking  of  stones, 
not  only  on  the  spot  in  question,  but 
all  along  the  bed  of  the  river,  which 
he  claims  as  being  his  property ;  and 
he  has  a  right  to  have  that  submitted 
to  the  jury.  The  same  observation 
applies  to  the  fence  and  the  banks  of 
the  river.  What  weight  the  jury  may 
attach  to  it  is  another  question." 

1  Doe  V.  Kemp,  7  Bing.  536. 

2  Taylor,  §  305;  Doe  v.  Kemp,  2 
Bing.  N.  C.  102.  Lord  Denman,  in 
giving  judgment,  observes  :  "If  the 
lord  has  a  right  to  one  piece  of  waste 
land,  it  affords  no  inference,  even  the 
most  remote,  that  he  has  a  right  to 
another,  in  the  same  manor,  although 
both  may  be  similarly  situated  with 
respect  to  the  highway;  assuming  that 
all  were  originally  the  property  of  the 
same  person,  as  the  lord  of  the  manor, 
which  is  all  that  the  fact  of  their  being 
in  the  same  manor  proves,  no  presump- 
tion arises  from  his  retaining  one  part 
in  his  hands,  that  he  retained  another; 
nor,  if  in  one  part  of  the  manor  the 
lord  has  dedicated  a  portion  of  the 
waste  to  the  use  of  the  public,  and 
granted  out  the  adjoining  land  to  pri- 


CHAP.  II.] 


RELEVANCY. 


[§  47. 


§  47.  Although  in  criminal  cases  good  character  may  be  proved 
bv  the  defendant,  as  tending  to  substantiate  the  plea  of    ^ 

-11  •        •    •!        •  1         -1  11  Character 

not  guilty/  yet  in  civil  suits  such  evidence  has  been  held   not  ordi- 
to  be  irrelevant.    When  the  question  comes  whether  the   vant'in 
defendant  has  committed  a  crime,  then,  as  a  matter  of  '^'^^  ^"' ' 
indulgence  to  one  whose  life  or  liberty  are  at  stake,  good  char- 
acter, such  as  would  make  it   improbable  that   he  would  have 
committed  the  crime  in  question,  may  be  introduced  among  the 
elements   from  which  the   jurors  are  to   make   up  their   judg- 
ment.    But  whether  it  be  because  in  a  civil  issue,  between  two 
private  parties,  neither  has  the  right  to   claim   such  an  indul- 
gence from  the  other,  or  whether  it  be  because  most  civil  suits 
grow  out  of  or  may  be  supposed  to  grow  out  of  honest  misconcep- 
tions of  rights,  Anglo-American  courts  have  agreed  in  holding 
that,  so  far  as  concerns  the  proof  in  civil  issues,  the  character  of 
either  party  is  as  a  rule  irrelevant.^     So  far  has  this  been  carried 


vate  individuals,  does  it  by  any  means 
follow,  nor  does  it  raise  any  probabil- 
ity, that  in  another  part  he  may  not 
have  granted  the  whole  out  to  private 
individuals;  and  they  afterwards  have 
dedicated  part  as  a  public  road.  But 
the  case  is  very  different  with  respect 
to  those  parcels,  which  from  their  lo- 
cal situation  may  be  deemed  parts  of 
one  waste  or  common  ;  acts  of  ownei*- 
ship  in  one  part  of  the  same  field,  are 
evidence  of  title  to  the  whole ;  and  the 
like  may  be  said  of  similar  acts  on  part 
of  one  large  waste  or  common."  Pp. 
107,  108.  See,  also,  Tyrwhitt  v. 
Wynne,  2  R.  &  A.  554  ;  Hollis  v. 
Goldfinch,  1  B.  &  C.  218,  219,  per 
Baylcy,  J. 

1  See,  fully,  Whart.  Cr.  Law,  7th 
ed.  §  036  e<  seq. 

Ruan  V.  Perry,  3  Caincs,  120,  is 
sometimes  cited  as  authority  for  the 
position  that  in  actions  for  tort  charg- 
ing criminality,  the  defendant  may 
put  good  character  in  evidence.  In 
Fowler  V.  Ins.  Co.  6  Cow.  675,  and 
Townsend  v.  Graves,  3  Paige,  455, 
Ruan  V.  Perry  is  cited  with  qualified 


approval ;  but  it  is  emphatically  re- 
pudiated in  Gough  V.  St.  John,  16 
Wend.  646;  Pratt  v.  Andrews,  4 
Comst.  493  ;  and  Porter  v.  Seller,  23 
Penn.  St.  424.  See  Bigelow's  over- 
ruled cases,  in  loco,  referring  also  to 
Potter  V.  Webb,  6  Greenl.  14  ;  Norton 
V.  Warner,  9  Conn.  1 72. 

-  Elsam  V.  Faucett,  2  Esp.  563; 
Atty.  Gen.  v.  Bowman,  2  B.  &  P.  532, 
n.;  Atty.  Gen.  i-.  Radloff,  10  Ex.  R.  84; 
Downing  v.  Butcher,  2  M.  &  Rob.  374; 
Jones  V.  Stevens,  11  Price,  235 ;  Thay- 
er V.  Boyle,  30  Me.  475;  Boardmau  v. 
Woodman,  47  N.  H.  120;  Wright  v. 
McKee,  37  Vt.  161;  Schmidt  r.  Ins. 
Co.  1  Gray,  529;  ]\IcDonald  v.  Savoy, 
110  Mass.  49;  Gough  v.  St.  John,  16 
Wend.  646;  Fowler  v.  Ins.  Co.  6 
Cow.  693;  Townsend  v.  Graves,  3 
Paige,  453;  Pratt  v.  Andrews,  4 
Comst.  493  ;  Corning  v.  Corning,  6 
N.  Y.  97;  AVillis  v.  Forrest,  2  Duer, 
310;  Lockyer  v.  Lockyer,  Edm.  S.  C. 
107;  DainV  Wyekoff,  18  N.  Y.  45; 
Porter  v.  Seller,  23  Penn.  St.  424; 
Anderson  v.  Long,  10  S.  &  U.  55; 
M'Keuney  v.  Rhoads,  5   Watts,  343; 

61 


§47.] 


THE   LAW    OF   EVIDENCE. 


[book  I. 


that  in  actions  for  malicious  prosecution  and  for  false  imprison- 
ment, the  detendant,  to  sustain  tlie  defence  of  probable  cause,  can- 
not put  the  plaintiff's  bad  character  in  issue  ;  though  this  proof 
may  be  offered  in  mitigation  of  damages.^  So,  where  the  issue 
was  whether  a  devisee  under  a  will  was  charged  with  fraudu- 
lently procuring  the  will,  that  being  the  issue,  he  was  refused  per- 
mission to  prove  his  good  character  as  a  defence.^  So  in  a  bas- 
tardy suit,  evidence  that  the  complainant  has  had  the  reputation 
of  being  a  prostitute  for  the  three  years  preceding  the  accusation, 
is  properly  rejected.^  So  that  the  plaintiff,  in  an  action  for 
assault,  was  not  a  person  of  sober  habits,  is  inadmissible,  on  part 
of  the  defence,  the  offer  being  disconnected  with  any  pi-oposal 
to  show  that  the  plaintiff's  want  of  sobriety  contributed  to  his 
injury.*  So  in  actions  for  defamation,  evidence  of  the  plaintiff's 
good  character  is  held  irrelevant,  even  on  a  plea  of  justification, 
unless  general  character  be  put  in  issue.^ 

It  has  indeed  been  ruled  that  in  slander,  when  the  general 
issue  only  is  pleaded,  the  plaintiff  may  prove  his  good  character, 
at  least  to  increase  damages.^     But  the  better  opinion  is  against 


Churcb  V.  Drummond,  7  Ind.  19  ;  Mor- 
ris V.  Hazelwood,  1  Bush,  Ky.  208; 
Smets  V.  Plunket,  1  Strobh.  372; 
Ward  V.  Herndon,  5  Port.  382  ;  Gutz- 
willer  V.  Lackman,  26  Mo.  1G8.  See 
Potter  V.  Webb,  6  Greenl.  14. 

1  Downing  v.  Butcher,  2  M.  &  Rob. 
3  74;  Jones  v.  Stevens,  11  Price,  235; 
Newsam  v.  Carr,  2  Stark.  R.  69,  over- 
ruling Rodigues  v.  Tadmire,  2  Rep. 
271  ;  Bacon  v.  Towne,  4  Gush.  217  ; 
Givens  r.  Bradley,  3  Bibb,  192  ;  Bos- 
tick  V.  Rutherford,  1  Hawks,  85 ;  Mar- 
tin V.  Hardesty,  29  Ala.  458. 

Where  injury  to  character  is  dis- 
claimed, character  cannot  be  attacked. 
Smith  V.  Hyndman,  10  Gush.  554.  See 
particularly  infra,  §  54. 

In  AVinebiddle  v.  Porterfield.  9 
Penn.  St.  137,  it  was  said  that  "per- 
haps" the  defendant,  in  such  case, 
might  "  show,  for  the  purpose  of  miti- 
gating the  damages,  and  for  no  other 
purpose,  that  the  character  of  the 
62 


plaintiff  was  bad  on  subjects  uncon- 
nected with  the  charge  made  by  the 
defendant."  This  is  afhrraed  in  Bos- 
tick  V.  Rutherford,  4  Hawks,  85.  To 
same  effect,  see  Israel  v.  Brooks,  23 
111.  575.     See  supra,  §  32. 

2  Goodright  V.  Hicks,  Buller  N.  P. 
296. 

8  Sidelinger  r.  Bucklin,  64  Me.  371. 

*  Drohn  v.  Brewer,  77  111,  280. 

^  Powell  on  Ev.  515  ;  Cornwall  v. 
Richardson,  R.  &  M.  305  ;  Brine  v. 
Bazalgette,  3  Exch.  692;  Wright  v. 
Shroeder,  2  Curtis  C.  C.  548;  Sever- 
ance V.  Hilton,  22  N.  H.  (4  Post.)  147; 
Dame  v.  Kenney,  23  N.  H.  (5  Fost.) 
318;  Inman  v.  Foster,  8  Wend.  602; 
Harcourt  v.  Harrison,  1  Hall,  474; 
Petrie  v.  Rose,  5  Watts  &  S.  364; 
Chubb  V.  Gcll,  34  Penn.  St.  114; 
Harrison  v.  Shook,  41  111.  142;  Haun 
V.  Wilson,  28  Ind.  296;  Holley  v.  Bur- 
gess, 9  Ala.  728. 

6  Romayue  i*.  Duane,  3  Wash.  C.  C. 


CHAP.  II.]  relevancy;  [§  49. 

this  concession  ;  on  the  ground  that  the  law  presumes  a  party's 
character  to  be  good,  and  that  it  is  superfluous  for  him  to  prove 
that  which  is  presumed.  Even  when  justification  is  set  up  by 
proving  the  charge,  the  plaintiff,  so  far  has  the  rule  been  pushed, 
cannot  prove  his  good  character  in  rebuttal.^  But  when  the 
plaintiff's  good  character  is  directly  attacked,  then  evidence  going 
to  his  whole  pertinent  general  reputation  may  be  introduced.^ 
But  on  an  information  in  the  exchequer,  filed  by  the  attorney 
general,  charging  the  defendant  with  keeping  false  weights,  he  was 
held  not  entitled  to  give  evidence  of  good  character,  on  the  ground 
that  the  right  was  limited  to  prosecutions  strictly  criminal.^ 

§  48.  Yet  there  are  many  cases  in  which  the  character  of  a 
person  is  one  of  the  points  at  issue ;  and  in  such  cases   ■v\^iiere 
evidence  as  to  character  is  not  only  relevant  but  of  direct   ph^facter 

•^  IS  at  issue, 

importance.    Is  a  master  or  agent,  for  instance,  charged   there  gen- 

eral  repu- 

with  culpa  in  eligendo  ?  In  such  case  the  bad  general  tation  may 
reputation  of  the  employee  is  the  very  point  the  plain-  "^  ^"^"^ 
tiff  has  to  establish.^  Is  the  general  conduct  of  a  party  at  issue  ? 
Then  general  reputation  (as  distinguished  from  proof  of  particular 
acts)  is  admissible  to  show,  not  that  particular  things  were  done 
or  not  done  by  the  party,  but  that  his  general  conduct  was  or 
was  not  as  alleged.^ 

§  49.  Character,  in  the  sense  in  which  the  term  is  here  used, 
means  the  estimate  attached  to  the  individual  by  the    character 
community,  not  the  private  opinion  held  as  to  such  in-   |st-onverti- 

,    ,  "^  ^      ^  -^  ble  with 

dividual  by  the  witness.     Character,  therefore,  is  to  be   reputation. 

2-lG  ;  Bennett  v.  Hyde,    G    Co^n.  24  ;  ^  gee  more  fully,  infra,  §  50  ;  Stein- 
Adams    V.    Lawson,     17     Grat.    250;  man  i'.  Mc Williams,  6  Peun.  St.  170. 
Shroyer  v.  Miller,  3  W.  Va.  159  ;  Byr-  »  Atty.  Gen.  v.  Bowman,  2  B.  &  P. 
ket  V.  Monohan,  7  Blackf.  83  ;  How-  532,  n.  a. 

ell  V.  Howell,  10   Ired.  82  ;   Sample  v.  *  See  Wharton  on  Ag.  §  277;  Lee 

Wynn,  Biisbee,  319;  Burton  (.'.March,  v.   Detroit,   62  Mo.  505;    Huntini;ton 

6  Jones,   L.  409;  Scott  v.  Peebles,  2  R.  R.  y.  Decker,  3  Weekly  Notes,  120. 

Sm.  &  M.  54G.  Otherwise  when   c»//;«   in  dlqendo  is 

^  Matthews    v.  Huntley,    9    N.    H.  not   averred.     Robinson    v.    R.    U.    7 

14G;  Stow?;.  Converse,  3  Conn.  325;  Gray,   92;   Jacobs    v.  Duke,   1   E.  D. 

Houjjjhtaling  v.    Kilderhouse,  1  N.  Y.  Smith,  271.     See  infra,  §  55. 

530;  aff.  S.  C.  2  Barb.  149.    Though  ^  Fountain    v.  Boodle,   3   Q.   B.  5; 

see   Harding  v.  Brooks,  5   Pick.  244  ;  Humphrey  r.  Humphrey,  7  Conn.  116; 

Byrket   v.    Monohan,    7    Blackf.    83.  Anderson    v.  Long,  10    S.  &    R.  55; 

See,  for  other  cases,  infra,  §  50.  Atkinson  v.  Graham,  5   Watts,  411  ; 

Frazier  v.  R.  R.  38  Penn.  St.  101. 

63 


§  50.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

regarded  as  convertible  with  "  reputation,"  ^  or  the  general  credit 
which  a  man  has  obtained  in  public  opinion.  A  witness,  there- 
fore, who  is  called  to  speak  to  chai-acter,  — unlike  a  master  who 
is  asked  for  the  character  of  his  servant,  —  cannot  give  tlie  result 
of  his  own  personal  experience  and  observation,  or  express  his 
own  opinion,  but,  in  strict  law,  he  must  confine  himself  to  evi- 
dence of  mere  general  repute.^  In  view  of  the  fact  that  "  the 
best  character  is  generally  that  which  is  the  least  talked  about," 
the  courts  have  found  it  necessary  to  permit  witnesses  to  give 
negative  evidence  on  the  subject,  and  to  state  that  "  they  never 
heard  anything  against  the  character  of  the  person  on  whose 
behalf  they  have  been  called."  ^  The  reputation  to  be  established 
is  that  which  would  make  it  likely  or  unlikely  that  the  party 
would  do  the  controverted  acts.*  When  character  is  attacked  it 
may  be  defended  by  rebutting  proof  as  to  general  reputation,  but 
not  by  proof  of  particular  facts  tending  to  show  bad  character.^ 
Thus,  where  a  party  is  charged  in  a  libel,  not  with  doing  particular 
acts,  but  general  dishonesty  or  incapacity,  then,  in  a  suit  on  such 
libel,  it  is  admissible  for  the  plaintiff  to  prove  general  honesty 
and  capacity.^ 

§  50.  It  would  be  manifestly  improper  to  permit  a  party  suing 

for  damages  to  put  in  evidence,  as  reason  why  he  should 

may'be*^^     have  heavy  damages,  that  his  character  is  good.     First 

uicrease^^or   ^^®  ^^^  assuuies  all  characters  to  be  good,  and  there 

mitigate  is  no  use  in  proving;  that  which  is  thus  assumed ;  sec- 
damages.  11 

ondly,  to    make  good  character  the  basis  of   recovery 

would  be  equivalent  to  saying  that  a  person  with  a  bad  character 

1  Infra,  §  564;  Knode  v.  William-  Johnson,  38;  Douglass  v.  Tousey,  2 
son,  17  Wall.  586;  AVetherbee  v.  Nor-  Wend.  352;  Frazier  v.  R.  R.  38  Penn. 
ris,  103  Mass.  566.  St.  104;  Hopps  i'.  People,  31  111.  385; 

2  Taylor's  Ev.  §  325  A.  People  ;;.  Garbutt,  17  Mich.  9;  Sawyer 

3  Cockburn,  C.  J.,  L.  &  Cave  C.  C.  v.  Eifert,  2  Nott  &  M.  511;  Davis  v. 
636;  10  Cox,  34;  R.  v.  Turner,  6  How.  State,  10  Ga.  101 ;  State  v.  Touney,  27 
St.    Tr.    613;    Gandolfo   v.    State,  11  Mo.  12;   People  u.  Fair,  43  Cal.  13  7. 
Oh.  (N.  S.)  114.     See  fully,  infra,  §         °  See  supra,  §  49;   R.  v.  Rowton, 
564.  Leigh  &  C.  520 ;  5.  C.  10  Cox  C.  C. 

4  R.  V.  Clarke,  2  Stark.  241;  R.  v.  25;  Com.  v.  Sackett,  22  Pick.  394; 
Stannard,  7  C.  &  P.  673  ;  Com.  v.  Com.  i^.  Webster,  5  Cush.  295;  People 
Hardy,  2  Mass.  317;  Boynton  v.  Kel-  v.  White,  14  Wend.  111. 

logg,  3  Mass.  189;  Com.  v.  Webster,  ^  King  v.  Waring,  5  Esp.  14;  Foun- 
5  Cush.  324;  Andrews  v.  Vanduzer,  11     tain  i'.  Boodle,  3  Q.  B.  5. 

64 


CHAP.  II.]  RELEVANCY.  [§  51. 

can  be  injured  with  impunity  ;  thirdly,  a  collateral  issue  would 
be  provoked  which  would  bear  hard  upon  many  deserving  cases. 
For  these  and  other  reasons,  the  courts  have  refused  to  permit 
such  evidence  to  be  put  in.  Thus,  in  an  action  for  the  seduction 
of  a  daughter,  the  good  character  of  the  girl  cannot,  as  will  be 
presently  seen,  be  put  in  evidence  as  part  of  the  plaintiff's  case.^ 
Nor  will  the  plaintiff  in  an  action  for  slander  for  charging  theft 
be  permitted  to  prove,  as  part  of  his  case,  his  character  for  hon- 
esty.^ But  it  is  otherwise  where  the  defendant  sets  up  a  defence 
by  which  the  plaintiff's  character  is  even  indirectly  impugned ;  or 
when  the  general  issue  is  pleaded,  in  which  case  the  plaintiff  may 
prove  his  general  good  character  in  order  to  increase  damages.^ 

§  51.  It  has  been  argued  that  in  actions  of  seduction  the  good 
character  of  a  third  person  is  one  of  the  grounds  on 
which  a  plaintiff  in  a  suit  claims  damages  ;  and  if  so,    seiiuction 
the  plaintiff,  it  is  said,  is  entitled  to  put  such  good  char-   ^p,yvTous 
acter  in  evidence.    It  is  clear  that  a  father,  for  instance,   ^f  "^'grson 

suinc:  for  damages  for  his  daughter's    seduction,  may    seiiuced  is 
°  °  ,  °  .     .      .  ,,        admissible, 

prove  the  value  of  her  services,  though  this  incidentally 

involve  the  question  of  character  ;  *  and  the  same  reasoning  is 
used  as  to  an  action  by  a  husband,  for  damages  for  adultery  with 
his  wife.^  But  in  neither  of  these  cases  can  the  plaintiff",  as  a 
matter  of  evidence  in  chief,  prove  directly  the  prior  good  char- 
acter of  the  seduced  person  as  a  ground  for  recovei-y.'^  On 
the  other  hand,  to  mitigate  the  offence,  the  defendant  has  been 
held  entitled  to  put  in  evidence  not  merely  the  prior  general  bad 
chai-acter,  but  particular  prior  acts  of  indiscretion  on  the  part  of 

1  Bamfield  v.  Massey,  1  Camp.  460;  W.    Va.    158.     See,  for   other    cases, 

Dotld  y.  Norris,  3  Camp.  519.  supra,    §    47;  Townsend    on    Libel,  § 

'^  Abbott,  C.  J.,  in  Cornwall  v.  Rich-  387. 

ardson,  K.  &  M.  307.  See    supra,  §  47.  *  See  Andrews  v.  Aiskcy,  8  C.  &  P. 

8  Bate  V.   Hill,  1   C.  &  P.   100;  11.  7;  Dodd  v.  Norris,   3  Camp.  510;  El- 

V.  Clarke,  2  Stark.  R.  241;  Brown  v.  sam  v.  Faucett,  2  Esp.  5ti2;  Terry  r. 

Goodwin,  Ir.  Cir.  Rep.  61 ;  cited  Tay-  Hutchinson,  9  B.  &  S.  487;  Carpenter 

lor's  Ev.  §  335;  Romaync  v.  Duane,  v.  Wall,  11   A.  &  E.  8u3  ;  Grinnell  v. 

3  Wash.  C.  C.  246  ;  Bennett  v.  Hyde,  Wells,  7  M.  &  G.  1033. 

6  Conn.  24;   Sample  v.  Wynn,  Busbee  ^  Buller  N.  P.  27. 

(N.    C),    319;    Burton   v.   March,   6  «  Bamfield  w.  Massey,  1  Camp.  4C0; 

Jones,  L.  409;    Holly   v.  Burgess,    9  Dodd  v.  Norris,  3  Camp.  519;   Pratt 

Ala.  728;  Steinman  v.  McWilliams,  6  t'.  Amlrews,  4   N.  Y.  4!»3  ;   Wilson  c. 

Penn.  St.  170;    Shroyer   v.  Miller,  3  Sproul,  3  Pen.  &  Watts,  49. 

VOL.  I.  ,                 5  Go 


§52.] 


THE   LAW   OF   EVIDKNCE. 


[book  I. 


In  breach 
of  promise 
plaintiff's 
bad  charac- 
ter ma}'  be 
proved. 


the  person  seduced. ^  In  such  case  the  plaintiff  niay  prove  the 
general  good  reputation  of  the  seduced  person  in  rebuttal.^ 
§  52.  It  does  not  bar  an  action  for  breach  of  promise  of  mar- 
riage that  the  plaintiff  has  a  bad  character,  for  prom- 
ises must  be  kept  to  persons  of  bad  character  as  well  as 
to  persons  of  good  character.  But  when  a  plaintiff 
claims  that  his  character  has  been  damaged,  and  his  feel- 
ings crushed,  by  such  breach  of  promise,  then,  in  mitiga- 
tion of  damages,  it  may  be  shown  that  he  had  no  character  to  be 
hurt  by  the  breach,-^  and  no  feelings  that  would  be  particularly 
shocked.^  With  regard  to  immorality  we  may  go  a  step  further. 
If  a  man  "  is  inveigled  into  an  engagement  by  a  harlot,  he  is  a 
victim  of  a  sheer,  bald  fraud."  In  such  case  he  can,  as  part  of  his 
defence,  put  in  evidence  the  bad  character  of  the  woman,  showing 
that  he  was  ignorant  of  such  bad  character  at  the  time  of  the  en- 
gagement.^ Whatever  would  show  that  the  party  suing  was  not 
in  a  condition  to  perform  the  contract,  is  admissible  in  defencCj^ 
1  Verry  v.  Watkins,  7  C.  &  P.  308.     Contrat  de  Mariage,  part  2,  chap.   1, 


2  Bate  V.  Hill,  1  C.  &  P.  100.  See 
qualifications  stated  by  Bronson,  C. 
J.,  in  Pratt  v.  Andrews,  4  N.  Y.  495. 

3  Foulkes  I'.  Sellway,  3  Esp.  236  ; 
Boyton  v.  Kellogg,  3  Mass.  189. 

4  Leeds  v.  Cook,  4  Esp.  256. 

5  Van  Storch  v.  Griffin,  67  Penn. 
St.  504. 

6  "In  Baddelyv.  Mortlock,  1  Holt's 
Nisi  Prius  Rep.  151  (1816),  3  E.  C.  L. 
R.  57,  where  a  man  brought  an  action 
against  a  Avoman  for  breach  of  prom- 
ise, the  latter  had  heard  some  charges 
against  him  involving  pecuniary  fraud 
and  perjury,  and  oh  not  receiving  any 
satisfactory  explanation,  broke  otF  the 
match.  Gibbs,  Ch.  J.,  held,  if  the 
charges  were  true,  she  was  not  bound 
to  perform  the  contract,  but  that  un- 
less they  were  clearly  proven,  the  ex- 
istence of  the  rumor  affected  only  the 
damages.  See,  also,  the  reporter's 
note  to  this  case,  citing  Foulkes  v.  Sel- 
way,  3  Espinasse,  336;  Leeds  v.  Cooke, 
4  E^p.  256  ;  and  as  to  circumstances 
which  justify  non-performance  of  this 
contract  generally,  Pothier,  Traite  du 

66 


art.  7.  In  Irving  r.  Greenwood,  1 
Car.  &  Payne,  350  (1824),  (11  E.  C. 
L.  R.  412),  it  was  held  that  if  the 
promise  was  broken  by  the  defendant 
because  he  found  the  plaintiff  to  be  a 
loose  and  immodest  woman,  it  went  in 
bar  of  the  action,  unless  he  was  aware 
of  the  circumstances.  See  note,  also, 
to  this  case.  See,  also,  Wharton  v. 
Lewis,  1  C.  &  P.  529  (11  E.  C.  L.  R. 
459),  where  the  same  rule  is  extended 
to  "  misrepresentation  or  wilful  sup- 
pression of  the  real  state  of  the  plain- 
tiff's family."  In  Bench  v.  Merrick, 
1  Car.  &  Kir.  (47  E.  C.  L.  R.)  463 
(1844),  the  rule  laid  down  by  the  court 
in  the  principal  case  was  adopted, 
where  the  promise  had  been  made  in 
ignorance  that  the  woman  had  had 
an  illegitimate  child  ten  years  before, 
though  her  conduct  since  might  have 
been  perfectly  correct.  See,  also, 
Young  V.  Murphy,  3  Bing.  N.  C.  54 
(32  E.  C.  L.  R.  38);  Horam  v.  Hum- 
phreys, Lofft's  Rep.  80."  Note  to 
S.  C.  in  1  Weekly  Notes,  466. 


CHAP.  II.] 


RELEVANCY. 


[§  55. 


§  53.  Much  vexed  has  been  the  question  whether,  when  a  party 
sues  for  damages  sustained  by  the  defendant's  libel  or   „^ 

....  When 

slander,  the  defendant,  in  mitigation  of  damage,  may  plaintiff 

put  in  evidence  the  plaintiff's  general  bad  character,  slander  or 

opening  him  to  suspicion  in  the  very  relations  which  the  fen^ilmt^' 

defamation  in  question  covered.   The  inclination  of  opin-  "||^y  P"*; 

ion  is  in  the  affirmative.^    "  The  plaintiff's  general  char-  general 

...  .        1  .  .  n      ,         1,-1  badcliar- 

acter  is  m  issue  m  this  action,  and  the  defendant  may    acte.in 
show  that    the  plaintiff's  reputation  has  sustained  no 
injury,  because  he  had  no  reputation  to  lose."  ^     But  the  defend- 
ant ought  not  to  be  permitted  to  introduce  such  evidence,  without 
in  some  way,  by  plea  or  otherwise,  giving  the  plaintiff  notice.^ 

§  54.  Although  in  an  action  for  malicious  prosecution  the 
plaintiff's  bad  character,  as  has  been  stated,  cannot  be  so  in  maii- 
put  in  evidence  as  proof  of  probable  cause,  such  evidence  ecu"io,i'^°^" 
may  be  received  in  order  to  mitigate  damages.* 

$55.  Good   character   being    presumed,  evidence  to    burden  on 

.  .  ....  .  part}'^  as- 

support  it  will  not  be  received  until  it  is   assailed  or   sailing 
until  it  is  put  directly  in  issue.^ 


I  Folkard  on  Slander,  541 ;  2  Star- 
kie's  Evid.  G41,  citing  unreported  de- 
cisions by  Lord  Denman,  Parke,  B., 
Lord  Tenterden,  and  Coltman,  J. ; 
Leicester  v.  Walter,  2  Camp.  251  ; 
Richards  v.  Richards,  2  M.  &  R.  587; 
Newssam    v.    Carr,   2    Stark.    R.   70 ; 

r.  Moor,  1  M.  &  Sel.  284 ,  Cil- 

ley  V.  Jenness,  2  N.  Hamp.  87  ;  Foot 
V.  Tracy,  1  Johns.  46;  Paddock  v. 
Salisbury,  2  Cow.  811;  Ilamer  v.  ]Mc- 
Farliu,  4  Denio,  509  ;  Wilson  v.  Noo- 
nan,  27  Wise.  598;  Whitaker  v.  Free- 
man, 1  Dev.  L.  270;  Bryan  v.  Gurr, 
27  (Ja.  378;  Scott  v.  IMcKinrush,  15 
Ala.  GG2  ;  Pope  v.  Welsh,  18  Ala.  GSl ; 
Fuller  c.  Dean,  31  Ala.  654.  Conlra, 
Jones  V.  Stevens,  11  Price,  257;  Corn- 
wall V.  Richardson,  R.  &  M.  305; 
Jackson  c.  Stetson,  15  Mass.  48;  Al- 
dcnium  v.  French,  1  Pick.  1;  Walcott 
V.  Hall,  G  Mass.  514.  See  Ross  v.  Lap- 
ham,  14  Mass.  275;  Bailey  v.  Ilyile,  3 
Conn.  403  ;  Bennett  v.  Ilydc,  G  Conn. 
24  ;  Douglass  i;.  Tousey,  2  Wend.  352. 


See,  generally,  Maynard  v.  Beardsley 
7  Wend.  550;  Winebiddle  v.  Porter- 
field,  9  Penn.  St.  137;  Young  i'.  Ben- 
nett, 4  Scam.  43;  B.  v.  J.  22  Wise.  3  72. 

2  Davis,  J.,  Whitney    v.   Janeville 
Gazette,  5  Bissell,  330. 

^  Townsend  on  .Slander,  §  40G,  cit- 
ing Anon.  8  How.  Pr.  434. 

*  Rodriguez  v.  Tadmire,  2  Esp. 
72  ;  Downing  v.  Butcher,  2  M.  &  R. 
374;  Bacon  v.  Towne,  4  Cush.  217; 
Goodrich  v.  Warren,  21  Conn.  482; 
Winebiddle  v.  Portcrficld,  9  Penn.  St. 
137  ;  Gwin  v.  Bradley,  3  Bibl),  192  ; 
Israel  v.  Bruoks,  23  111.  575  ;  Bustick 
V.  Rutherford,  4  Hawks,  83  ;  Beal  v. 
Robeson,  8  Ired.  29G;  Martin  v.  Har- 
desty,  29  Ala.  758;  Field  on  Damages, 
§  688.  Though  see  Fitzgibbon  v. 
Brown,  43  Me.  169.  See  supra,  §  47. 
Aider,  when  attack  on  character  is  dis- 
claimed. Smith  c.  H\  ndinan,  10  Cu-h 
554. 

6  Kelland  v.  Bissett,  1  Wash.  C.  C 
144  ;    Bruce   v.  Priest,   5  Allen,   100; 

67 


§56.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


§  56.  Pai-ticular  facts,  as  going  to  make  up  a  reputation  for 
either  good  or  bad  character,  cannot  ordinarily  be  put 
in  evidence.^  At  the  same  time,  in  an  action  based  on 
culpa  in  eligendo,  against  a  principal,  evidence  may  be 
given  of  particular  facts  from  which  the  principal  was 
bound  to  have  inferred  the  agent's  incompetency.^ 


Particular 
facts  can- 
not be  put 
in  evi- 
dence. 


Pratt  V.  Andrews,  4  Corast.  493; 
Cochran  v.  Toiler,  14  Minn.  385  ; 
Goldsmith  v.  Pioard,  27  Ala.  142.  In- 
fra, 5G2-8. 

1  R.  V.  Rowton,  L.  &  C.  320;  Com. 
V.  Sackett,  22  Pick.  394;  Com.  v. 
Webster,  8  Cash.  314;  People  v. 
White,  14  Wend.  Ill;  McCarty  v. 
People,  51  111.  231;  Keener  v.  State, 
18  Ga.  194 ;  though  see  State  v.  Jerome, 
33  Conn.  265. 

2  Huntington  R.  R.  v.  Decker,  3 
Weekly  Notes,  120  (apparently  mod- 
ifying Frazier  v.  R.  R.  38  Penn.  St. 
103);  Pittsburg  R.  R.  v.  Ruby,  38 
Ind.  312.  See  Robinson  v.  R.  R.  7 
Gray,  92,  and  supra,  §  48. 

"  Where  a  party  undertakes  to  show- 
that  his  reputation  is  good,  or  that  the 
reputation  of  the  other  party  or  a  wit- 
ness is  bad,  he  cannot  put  in  evidence 
of  particular  facts  to  prove  the  general 
reputation  he  is  endeavoring  to  es- 
tablish. And  to  meet  evidence  of  gen- 
eral reputation,  the  opposing  party 
may  put  in  evidence  to  the  contrary 
of  a  like  general  character.  But  he 
cannot  prove  particular  facts,  for  the 
reason  that  a  particular  fact  does  not 
necessarily  establish  a  general  reputa- 
tion, or  fairly  meet  the  issue  presented, 
and  may  also  raise  collateral  issues  ; 
and  for  the  further  reason  that  while 
a  party  is  presumed  always  to  be 
ready  to  defend  his  general  reputa- 
tion, he  is  not  expected  to  be  pre- 
pared to  meet  a  distinct  and  specific 
charge."  Peterson  v.  Morgan,  116 
Mass.  350 

"  In   Commonwealth    v.   Hardy,    2 

68 


Mass.  303,  318,  it  was  said  by  Chief 
Justice  Parsons  :  "  It  is  not  competent 
for  the  prosecutor  to  go  into  this  in- 
quiry, until  the  defendant  has  volun- 
tarily put  his  character  in  issue,  and  in 
such  case  there  can  be  no  examination 
as  to  particular  facts."  See  Common- 
wealth V.  Sacket,  22  Pick.  394;  Com- 
monwealth V.  Webster,  3  Cush.  295. 

"  It  is  true  that  upon  cross-examina- 
tion of  a  witness  testifying  to  general 
rejautation,  questions  may  be  put  to 
show  the  sources  of  his  information, 
and  particular  facts  may  be  called  to 
the  witness's  attention,  and  he  may 
be  asked  if  he  ever  heard  of  them; 
but  this  is  allowed,  not  for  the  pur- 
pose of  establishing  the  truth  of  these 
facts,  but  to  test  the  credibility  of  the 
witness,  and  to  ascertain  what  weight 
or  value  is  to  be  given  to  his  testi- 
mony. Leonard  v.  Allen,  11  Cush. 
241  ;  Rex  v.  Martin,  6  C.  &  P.  562. 
So  in  actions  for  slander,  evidence  of 
general  bad  character  of  the  plaintiff 
may  be  put  in  evidence  in  mitigation 
of  damages ;  and  where  the  plaintiff 
alleges  that  the  defendant  has  slan- 
dered him  in  a  particular  respect,  as 
for  thieving,  the  defendant  may  put  in 
evidence  for  the  same  purpose  that 
the  plaintiff's  general  reputation  in 
that  respect  is  also  bad.  Clark  v. 
Brown,  116  Mass.  504.  But  we  are 
not  aware  of  any  case  where  the  de- 
fendant upon  that  issue  has  been  al- 
lowed to  prove  a  particular  act  of 
theft."  Commonwealth  v.  O'Brien, 
119  Mass.  345,  346,  347,  Endicott,  J. 


CHAPTER  III. 


PRIMAEINESS   AS   TO  DOCUMENTS. 


I.  General  Rules. 

Secondary  evidence  of  documents  is  in- 
admissible, §  60. 

Rule  applies  to  evidential  as  well  as  to 
dispositive  documents,  §  61. 

Record  facts  cannot  be  proved  by  parol, 
§63. 

Otherwise  as  to  incidents  collateral  to 
records,  §  64. 

Of  administrative  records  parol  evi- 
dence is  admissible,  §  65. 

Probate  of  will  cannot  be  proved  by 
parol,  §  66. 

Administration  must  be  proved  by  rec- 
ord, §  67. 

Parol  evidence  not  admissible  on  cross- 
examination,  §  68. 

Statutory  designation  of  writings  not 
necessarily  exclusive,  §  69. 

Primary  means  immediate,  §  70. 

General  test  is  not  authority  but  imme- 
diatencss,  §  71. 

No  primary  testimony  is  rejected  be- 
cause of  faintness,  §  72. 

Written  secondary  evidence  inadmissi- 
ble, §  73. 

Counterparts  are  receivable  singlj-,  but 
not  so  duplicates,  §  74. 

Brokers'  books  are  primary  in  respect  to 
bought  and  sold  notes,  §  75. 

Of  telegrams  original  must  be  produced, 
§76. 

II.  E.xcEPTioNs  TO  Rule. 

Rule  does  not  apply  where  parol  evi- 
dence is  as  primary  as  written,  §  77. 

So  where  the  party  charged  admits  the 
contoTits  of  the  document,  §  79. 

Summaries  of  voluminous  documents 
can  be  received,  §  80. 

So  of  parol  evidence  of  things  fleeting 
and  uniiroducible,  §  81. 

So  of  documents  which  cannot  be 
brought  into  court,  §  82. 


Statute  may  require  marriage  to  be 

proved  by  record,  §  83. 
By  private  international  law  marriage 

may  be  proved  by  parol,  §  84. 
In   charges  of  penal  marriage  strict 

proof  is  required,  §  85. 
III.  Different  Kikd  of  Copies. 
Classification,  §  89. 
Secondary  evidence  of  documents  ad- 
mits of  degrees,  §  90. 
Photographic    copies  are   secondarj, 

§91. 
All  printed  impressions  are  of  same 

grade,  §  92. 
Press  copies  are  secondary,  §  93. 
Examined  copies  must  be  compared, 

§94. 
Exem])lifications  of  record  admissible 

as  primary,  §  95. 
In  the  United  States  made  so  by  stat- 
ute, §  96. 
Statute  does  not  exclude  other  proofs, 

§98. 
Only  extends  to  court  of  record,  §  99. 
Statute  must    be    strictly   followed, 

§100. 
Office  copy  admitted  when  authorized 

by  law,"§  104. 
Independently  of  statute,  records  may 

be  received,  §  105. 
Original  records  receivable  in    same 

court,  §  106. 
Office  copies  admissible  in  same  state, 

§107. 
So  of   copies  of   records  generally, 

§108. 
Seal  of  court  essential  to  copy,  §  109. 
E.xemplilication    of    foreign    records 

mav  be  proved  by  seal  or  parol, 

§  lio. 

Of    deeds,     registry    is    admissible, 
§  111. 

69 


§60.] 


THE   LAAV   OF   EVIDENCE. 


[book  I. 


Ancient  registries  admissible  without 
proof,  §  113. 

Certified  copy  of  oflicial  register  re- 
ceivable, §  114. 

E.xemplification  of  recorded  deeds 
admissible,  §  115. 

When  deeds  are  recorded  in  other 
states  exemplifications  must  be 
under  act  of  Congress,  §  118. 

Exemplifications  of  foreign  wills  or 
grants  provable  by  certificate,  § 
119. 

Certificates  inadmissible  by  common 
law  ;  otherwise  by  statute,  §  120. 

Notaries'  certificates  admissible,  § 
123. 

Searches  of  deeds  admissible,  §  126. 

Copies  of  public  documents  receiva- 
ble, §  127. 
IV.  Secondary  Evidence  may   be  ee- 

CEIVED  WHEN  PkIMARY  IS  UNPKO- 
DUCIBLE. 

Lost  or  destroyed  documents  ma}'  be 
proved  by  parol,  §  129. 

So  of  papers  out  of  power  of  party 
to  produce,  §  130. 

Accidental  destruction  of  paper  does 
not  forfeit  this  right,  §  132. 

Copies  of  unproducible  documents 
receivable,  §  133. 

So  may  abstracts  and  summaries, 
§134. 

So  as  to  records,  §  135. 

So  as  to  depositions  taken  in  same 
case,  §  137. 

So  as  to  wills,  §  138. 

Witness  of  lost  document  must  be 
sufficiently  acquainted  with  origi- 
nal, §  140". 

Court  must  be  satisfied  that  original 
is  non-producible  and  would  be  evi- 
dence if  produced,  §  141. 


Loss  may  be  inferentially  proved, 
§  142. 

Or  by  admission  of  opponent,  §  143. 

Probable  custodian  must  be  inquired 
of,  §  144. 

Search  in  proper  places  must  be 
proved,  §  147. 

Degree  of  search  to  be  proportioned 
to  importance  of  document,  §  148. 

Peculiar  stringency  in  case  of  nego- 
tiable paper,  §  149. 

Third  person  in  whose  hands  is  docu- 
ment must  be  subprenaed  to  pro- 
duce, §  150. 

Party  may  prove  loss  by  affidavit, 
§151. 
So  WHEN  Document  is  in  Hands  of 
Opposite  Party. 

Notice  to  produce  is  necessarj'  when 
document  is  in  hands  of  opposite 
party,  §  152. 

After  refusal  secondary  evidence  can 
be  given,  §  153. 

Notice  must  be  timely,  §  155. 

Notice  to  produce  does  not  make  a 
paper  evidence,  §  156. 

Party  refusing  to  produce  is  bound 
by  his  refusal,  §  157. 

Aiter  paper  is  produced  opposite  side 
cannot  put  in  secondary  proof, 
§158. 

Notice  not  necessary  for  document  on 
which  suit  is  brought,  §  159. 

Nor  where  party  is  charged  with 
fraudulently  obtaining  or  withhold- 
ing document,  §  160. 

Nor  of  documents  admitted  to  be  lost, 
§161. 

Nor  of  notice  to  produce,  §  162. 

Collateral  facts  as  to  instrument  may 
be  proved  without  notice,  §  163. 


I.  GENERAL   RULE. 

§  60.  Whenever  an  original  document  can  be  brought  into 
Secondary  court,  secondary  evidence  of  its  contents  is,  as  a  rule, 
fnadmi^si-  inadmissible.  In  some  instances  this  exclusion  may  be 
^'®-  based  on  a  statutory  limitation.     In  others  it  may  be 

sustained  on  the  ground  that  when  the  parties  to  a  contract 
agree  to  embody  the  contract  in  certain  words  on  a  certain  paper, 
the  contract  can,  in  good  faith,  be  evidenced  in  no  other  way. 
But  whether  the  document,  whose  contents  are  in  controversy,  be 
70 


CHAP.  III.]  PRIMARINESS   AS    TO   DOCUMENTS.  [§  60. 

one  which  a  statute  requires  to  be  in  writing ;  or  whether  it  be 
a  contract  put  in  writing  by  consent  of  the  parties  ;  or  whether, 
belonging  to  neither  of  these  ch\sses,  it  be  one  whose  meaning  it 
is  important  for  the  purposes  of  justice  accurately  to  collect, — 
the  policy  of  the  law,  independent  of  other  reasons,  requires  that 
its  original,  if  practicable,  should  be  produced.  For,  (1.)  lex 
seripta  manet^  while  memory  as  to  words  is  treacherous ;  and  even 
though  not  memory  but  a  written  copy  be  offered,  such  copy  has 
between  it  and  the  original  the  possibility  of  mistake  or  of  falsi- 
fication. Then,  (2.)  if  a  party  be  permitted  to  hold  back  the 
original,  wlien  he  could  produce  it,  and  substitute  for  it  a  second- 
ary proof,  a  door  would  be  opened  to  fraud.  And,  (3.)  unless 
such  a  rule  be  inexorably  applied,  an  end  would  be  put  to  that 
accurate  and  thorough  presentation  of  facts  which  is  essential 
to  the  administration  of  justice.  If  no  evidence  is  to  be  rejected 
because  it  is  secondary,  a  single  witness  Avould  be  sufficient  to 
swear,  either  primarily  or  secondarily,  either  by  first  hand  or 
second  hand  impressions,  to  a  whole  case,  documentary  and  oral ; 
the  testimony  of  a  witness,  in  such  a  case,  would  be  a  mere  con- 
clusion of  law,  derived  from  his  own  notions  of  facts,  with  this 
peculiarity,  that  the  law  would  be  made  by  himself  for  the  oc- 
casion ;  and  the  functions  of  both  judge  and  jury  would  be  dis- 
pensed with.  If  any  evidence  is  to  be  rejected  because  it  is  sec- 
ondary, then  it  is  best  to  put  the  line  where  it  is  most  intelligible  ; 
where  it  is  most  likely  to  secure  care  and  diligence  in  the  prepara- 
tion of  a  case,  and  accuracy  in  the  presentation  of  that  case  to  the 
court ;  whore  tlie  intent  of  parties  in  executing  a  writing  will  be 
best  promoted  ;  and  where  fraud,  in  the  substitution  of  the  spuri- 
ous for  the  genuine,  will  be  most  effectually  excluded.  So  far  as 
concerns  documentary  evidence,  these  ends  are  best  met  by  the 
rule  above  stated,  which  has  been  adopted  with  singular  unan- 
imity by  all  jurisprudences,  that  secondary  evidence  cannot  be 
received  of  a  document  whose  original  could  be  brought  into 
court.  1 

^  Among  the  cases   in  which   this  Vincent  v.  Cole,  M.  &  M.  258;  Twy- 

rule  i^  vindicated  may  be  found  tlie  man  v.  Knowles,  13  C.  B.  224 ;  Siordet 

following:    Brewster  v.    Sewell,   JJ  B.  v.   Kuc/.inski,  1 7   C.  B.  251;  Cory  r. 

&  A.  ;502  ;  Cotterill  v.  Hobby,  4  B.  &  Davin,  14   C.  B.  (N.  S.)   370;  Taylor 

C.  4G5;  Howe  v.  Brenton,  S  B.  &  C.  v.  lUggs,  1   Pet.  5D1;  Dwyer  v.   Dun- 

737;  Strother   v.   Barr,  5  Bing.  151;  bar,  5  WuU.  318;  Comstock  r.  Carnley, 

71 


§  61.]  THE   LAW    OF   EVIDENCE.  [BOOK  I. 

§  01.  It  makes  no  difference  in  this  respect,  whether  the  doc- 
Ruieap-  ument,  whose  contents  are  to  be  proved,  is  dispositive, 
welf to^evi-  *'•  ^-  ^^^  disposing  of  rights,  —  or  evidential,  i.  e.  one 
dentiai  as     proing:  to  provc  a  relevant  fact  in  dispute.     In  the  latter 

dispositive     o       o         1  1^   _ 

documents,  case  as  well  as  the  former,  the  writing  must  be  pro- 
duced if  practicable,  wherever  it  is  necessary  to  prove  the  par- 
ticular act  which  the  writing  embodies.  It  becomes  relevant, 
for  instance,  to  prove  a  military  desertion,  of  which  an  official 
registry  is  kept  by  authority  of  law.  In  such  case,  if  such  regis- 
try is  obtainable,  the  desertion  cannot  be  proved  by  parol,  or  even 
by  the  soldier's  letters. ^  Again  :  when  the  question  is  whether 
a  person  was  rated  for  the  relief  of  the  poor,  this  must  be  deter- 
mined by  the  rate-book,  and  not  by  the  collector's  oral  answer.^  A 
witness  cannot  even  be  asked  whether  certain  resolutions  were 
published  in  a  newspaper  ;  ^  nor  whether  his  name  was  written  in 
a  certain  book,*  unless  the  non-production  of  the  newspaper  or 
book  be  accounted  for.^  In  other  words,  with  certain  exceptions 
to  be  hereafter  stated,*^  when  a  relevant  fact  consists  of  the  sub- 
stance of  a  document,  the  document  itself  is  the  proper  evidence 
of  such  fact.  Until  the  absence  of  the  document  is  satisfactorily 
explained,  the  fact  cannot  be  proved  by  parol.^     As  documents  in 

4  Blatch.  58;    Morton  v.  White,   16  when   a   document  is  voluntarily  de- 

Me.  53;  Greeley  y.  Quimby,  22  N.  H.  stroyed   by   the   party.     See  infra,  §§ 

335  ;  Putnam  v.  Goodall,  3  N.  H.  419;  1265-70. 

Wells  u.  Man.  Co.  48  N.H.  491;  Com.  i  Terrell   v.    Colebrook,    35    Conn. 

V.  Kinison,  4  Mass.  646  ;    Bassett   v.  188.     Infra,  §  65. 

Marshall,  9  Mass.  312;  Com.  y.  James,  ^  r_  y^  Coppull,  2  East,  25;  Justice 

1  Pick.  375;  Terrell  v.  Colebrook,  35  v.  Elstob,  1  F.  &  F.  256;  R.  v.  Fitz- 

Conn.  188 ;    Gimball   v.   Hufford,    46  paine,  2  Q.  B.  494. 

Ind.  125;  McCombe  v.  R.  R.  67  N.  C.  s  R.  v.  O'Connell,  Arm.  &  T.  103. 

193;  Fitzgerald  v.  Adams,  9  Ga.  471;  *  R.  v.  Coppull,  2  East,  25. 

Newsom    v.    Jackson,    26     Ga.    241;  ^  See  infra,  §  70. 

Cloud  V.  Patterson,  1  Stew.  Ala.  394;  ^  See  infra,  §  77. 

Isabella  v.  Pecot,  2  La.  An.  387;  Hall  ">  Mr.  Taylor  (Ev.  §  373)  illustrates 

V.  Acklen,  9  La.  An.  219;  Pendery  v.  the    position    in   the   text     by   cases 

Ins.  Co.   21  La.   An.  410;  Ritchie  v.  "where   the   question    at    issue   was 

Kinney,  46  Mo.  298  ;  Chicago  v.  Ma-  simply  what  amount  of  rent  was  re- 

graw,  75  111.  566;  Conger  i>.  Converse,  served  by  the  landlord.     R.  v.  Mer- 

9  Iowa,  554;    Steele  v.  Etheridge,  15  thyr  Tidvil,  1   B.  &  Ad.  29;  Augus- 

Minn.  501 ;  Bemis  v.  Becker,  1  Kan.  tien   v.   Challis,  1    Ex.   R.    280.       In 

226  ;  Bovee  v.  McLean,  24  Wise.  223;  this  case  Alderson,  B.,  observes:  '  You 

Cotton  V.  Campbell,  3  Tex.  493;  Hoi-  may  prove  by  parol  the   relation   of 

liday  t;.  Harvey,  39  Tex.  670.     And  so  landlord  and  tenant,  but  without  the 

72 


CHAP.  III.] 


PRTMARINESS   AS   TO    DOCUMENTS. 


[§  61. 


this  sense  are  to  be  reckoned  letters,  books,  notes,  deeds,  con- 
tracts, accounts,  records,  journals,  wills,  &c.i 


lease  you  cannot  tell  whether  any  rent 
was  due.'  So  the  writing  must  be 
produced  to  show  who  was  the  actual 
party  to  whom  a  demise  had  been 
made;  R.  v.  Rawden,  8  B.  &  C. 
708  ;  3  M.  &  R.  426,  S.  C.  ;  or  under 
whom  the  tenant  came  into  possession ; 
Doe  V.  Harvey,  8  Bing.  239;  1  M. 
&  Sc.  374,  S.  C.  In  an  action  for 
the  price  of  labor  performed,  where  it 
appeared  that  the  work  was  com- 
menced under  an  agreement  in  writ- 
ing, but  the  plaintiff's  claim  was  for 
extra  work,  it  has  been  several  times 
held  that,  in  the  absence  of  positive 
proof  that  the  work  in  question  was 
entirely  separate  from  that  included 
in  the  agreement,  and  was  in  fact  done 
under  a  distinct  order,  the  plaintiff 
was  bound  to  produce  the  original 
document,  since  it  might  furnish  evi- 
dence not  only  that  the  items  sought 
to  be  recovered   were    not   included 


therein,  but  also  of  the  rate  of  remu- 
neration upon  which  the  parties  had 
agreed.  Vincent  v.  Cole,  M.  &  M. 
257,  per  Ld.  Tenterden;  3  C.  &  P. 
481,  S.  C. ;  Buxton  v.  Cornish,  1 
Dowl.  &  L.  585;  12  M.  &  W.  420,  S. 
C.  :  Jones  V.  Howell,  4  Dowl.  176  ; 
Holbard  v.  Stephens,  5  Jur.  71,  Bail 
C,  per  Williams,  J.;  Parton  v.  Cole, 
6  Jur.,  Bail  C.  370,  per  Patteson,  J. 
See  Reid  v.  Batte,  M.  &  M.  413;  Edie 
V.  Kingsford,  14  Com.  B.  759.  See, 
also,  Hawkins  v.  Warre,  3  B.  &  C.  697, 
where  Abbott,  C.  J.,  draws  the  dis- 
tinction between  papers  signed  by  the 
parties  or  their  agents,  and  those  which 
are  unsigned. 

"In  Whitford  v.  Tutin,  10  Bing. 
395;  4  M.  &  Sc.  106,  S.  C,  the 
plaintiff"  had  been  employed  as  secre- 
tary to  the  committee  of  a  charitable 
society,  pursuant  to  a  resolution  en- 
tered in  the  book  of  the  committee, 


^  Wilson  11  Young,  2  Cranch  C.  C. 
33  ;  De  Tastet  r.  Crousillat,  2  Wash. 
C.  C.  132;  Sebree  v.  Dorr,  9  Wheat. 
558  ;  U.  S.  V.  Boyd,  5  How.  29  ;  Skow- 
hegan  Bank  v.  Cutler,  49  Me.  315  ; 
Gage  V.  Wilson,  17  Me.  378;  March 
V.  Garland,  20  Me.  24  ;  Whitney  v. 
Balkam,  24  Me.  406  ;  Gale  v.  Currier, 
4  N.  II.  169;  Morrill  v.  Otis,  12  N. 
H.  4G0  ;  Brown  i'.  Jewett,  18  N.  II. 
230;  Hunt  f.  Rylance,  11  Cush.  117; 
New  Haven  Bk.  v.  Mitchell,  15  Conn. 
206  ;  Dygert  v.  Coppernall,  13  Johns. 
R.  210  ;  Cole  v.  Jessup,  10  N.  Y.  96  ; 
Bank  v.  Woods,  28  N.  Y.  545  ;  Smith 
V.  Axtell,  1  N.  J.  E(i.  494;  Vanhorn 
u.  Frick,  3  Serg.  &  R.  278;  Bryant 
V.  Stilwell,  24  Penn.  St.  314  ;  Eddy  v. 
Peterson,  22  111.  535  ;  Wilt  v.  Bird, 
7  Blackf.  258;  Patterson  v.  Doe,  8 
Blackf.  237;  Williams  v.  Jones,  12 
Ind.  561  ;  Turner  v.   Singleton,  2  A. 


K.  Marsh.  15;  Smith  v.  Dudley,  1 
Litt.  (Ky.)  66  ;  Smith  v.  Phillips,  25 
Mo.  555  ;  State  v.  Rosenfeld,  35  Mo. 
4  72  ;  Thompson  v.  Richards,  14  I\lich. 
172  ;  Angell  v.  Rosenburg,  12  Mich. 
24;  Conway  v.  Bank,  13  Ark.  48; 
Graham  v.  Hamilton,  3  Ired.  L.  381  ; 
Davidson  v.  Norment,  5  Ired.  L.  555  ; 
Felton  V.  McDonald,  4  Dev.  (N.  C.) 
L.  406 ;  Gwynn  v.  Setzer,  3  Jones 
(N.  C.)  L.  382  ;  Harris  v.  Eubanks, 
1  Spears  (S.  C),  l«-"3  ;  ^I'H^'i"  ''•  Cot- 
ton, 5  Ga.  341  ;  Fitzgerald  c.  Adams, 
9  Ga.  471  ;  Raines  v.  Ferryman.  29 
Ga.  529;  Mordecai  v.  Bcal,  8  Port. 
(Ala.)  529;  Hooks  v.  Smith,  18  Ala. 
3:58;  Kidd  v.  Cromwell,  17  Ala.  648  ; 
Dumas  v.  Hunter,  30  Ala.  75  ;  Gaines 
V.  Page,  15  La.  An.  108  ;  Dikes  r.  Mil- 
ler, 24  Tex.  417  ;  Poole  i;.  Gcrrard,  9 
Cal.  593. 

73 


§62.] 


THE    LAW   OF   EVIDKNCE. 


[book  I. 


§  62.  To  exclude,  however,  parol  evidence  on  tills  ground,  the 
objection  must  be  taken  at  the  time.  Thus  in  a  suit  on  an 
alleged  debt,  it"  the  plaintiff  can  establish  a  primd  facie  case, 
without  betraying  the  existence  of  a  written  contract  relating  to 
the  subject  matter  of  the  action,  he  cannot  be  precluded  from 
recovering  by  the  defendant  subsequently  giving  evidence  that 
the  agreement  was  reduced  into  writing ;  but  the  defendant,  if 
he  means  to  rely  on  a  written  contract,  must  produce  it  as  part 
of  his  evidence.^  So  it  has  been  ruled  in  an  action  of  eject- 
ment, that  the  plaintiff  could  not  be  defeated  by  one  of  his  wit- 
nesses proving  on  cross-examination,  that  an  agreement,  which 
he  only  knew  related  in  some  ivay  to  the  land  in  question^  was 
seen  on  that  morning  in  the  hands  of  the  plaintiff's  attorney,  and 
was  produced  at  a  former  trial  between  the  same  parties  ;  and  the 
court  held  that,  in  order  to  exclude  parol  evidence  of  the  tenancy, 
it  slioidd  appear  that  the  agreement  was  between  the  same  par- 
ties, and  was  binding  at  the  time  of  the  second  trial  ;  neither  of 
which  facts  was  proved.^     But  when  a  party  discovers  and  dis- 


of  whicli,  durinj^  his  service,  he  had 
had  the  care.  The  society  being  af- 
terwards dissolved,  the  plaintiff  sued 
some  of  the  members  of  the  committee 
for  his  salary,  and  the  court  held  that 
he  was  bound  to  produce  the  book 
under  which  he  Avas  engaged ;  for 
though  he  was  no  party  to  the. original 
resolution,  which  was  entered  into  be- 
fore his  appointment  as  secretary,  yet 
by  accepting  the  situation  and  the 
benefit  attached  to  it,  he  must  betaken 
to  have  adopted  the  terms  contained 
in  the  resolution,  and,  consequently, 
was  bound  to  produce  the  book  to 
show  what  those  terms  really  were. 
Whether,  in  an  action  on  the  case  for 
an  injury  done  to  the  plaintiff's  re- 
version, his  interest  as  a  reversioner 
may  be  proved  by  the  parol  testimony 


but  in  a  later  case,  where  nominal 
damages  only  were  recovered,  and  in- 
dependent proof  was  given  of  the  prem- 
ises having  been  devised  to  the  plain- 
tiff, the  judges  of  the  court  of  com- 
mon pleas  were  equally  divided  upon 
the  question  whether  a  nonsuit  should 
be  entered,  the  plaintifi' having  omitted 
to  produce  the  written  agreement  be- 
tween the  occupier  and  himself.  Stro- 
ther  V.  Barr,  5  Bing.  136;  Best,  C.  J., 
and  Burrough,  J.,  in  favor  of  non- 
suit; Park  and  Gaselee,  JJ.,  cont. ; 
2  M.  &  P.  207,  S.  C.  Taylor's  Ev. 
§  373-4. 

^  Taylor's  Ev.  §  375;  Magnay  v. 
Knight^  1  M.  &  Gr.  944;  2  Scott  N. 
R.  G4,  S.  C. ;  Stephens  v.  Pinney,  8 
Taunt.  327;  2  Moore,  349,  S.  C; 
Marston  v.  Deane,  7  C.  &  P.  13;  Fry 


of  the   tenant,  when  it  appears  that     v.  Chapman,  5   Dowl.  265;  R.  v.  Pad- 


the  premises  are  occupied  under  a 
written  agreement,  may  admit  of  some 
doubt.  In  one  case  it  was  held  that 
the  agreement  must  be  produced; 
Cotterill  V.  Hobby,  4  B.  &  C.  465; 
74 


stow,  4  B.  &  Ad.  208;  1  N.  &  M.  9, 
S.  C;  Reed  v.  Deere,  7  B.  &  C.  261, 
266. 

2  Doe  V.  Morris,  12  East,  23  7. 


CHAP.  III.] 


PRIMARINESS    AS    TO   DOCUMENTS. 


[§63. 


closes  for  the  first  time  on  trial  that  there  is  a  writing  embod^ung 
that  which  he  proposes  to  prove  by  parol,  the  rule  holds  good. 
It  is  his  business  to  duly  prepare  himself  for  trial,  and  to  probe 
the  nature  of  his  testimony  in  advance.^ 

§  63.  That  which  could  be  proved  by  record,  cannot  ordinarily 
be  proved  by  parol.^     Thus  the  filing  of  a  paper  must 
be  proved  by  the  certificate  of  the  clerk, '^  the  discontinu-    facts  can- 
ance  of  an  action  must  be  proved  by  the  record,*  a  par-   proved  by 
don  must  be  proved  by  the  warrant;^  a  divorce  must   P^^°^- 
be  proved  by  the  decree.^    So  the  record  is  primary  proof  of  prize 
proceedings  in  admiralty  ;  ^  of  an  order  of  court  nunc  pro  tune  ;  ^ 
of  a  removal  of  goods  under  an  execution ;  ^  of  a  sale  under  order 
of  court,  or  by  sheriff  ;  ^*^  of  a  tax  sale  ;  ^^  of  an  agreement  of 


1  Scarborough  v.  Reynolds,  12  Ala. 
252;  Iloitt  v.  Moulton,  21  N.  H.  586. 

2  Mclver  v.  Moore,  1  Cranch  C.  C. 
90;  Gleason  v.  Florida,  9  Wall.  779; 
Moody  V.  Moody,  11  Me.  247;  Winsor 
V.  Clark,  39  Me.  428;  Chase  v.  Sav- 
age, 55  Me.  543 ;  Pendexter  v.  Carle- 
ton,  16  N.  H.  482;  Smith  v.  Kirby,  10 
Mete.  150;  Fleming  v.  Clark,  12  Al- 
len, 191 ;  Wayland  v.  Ware,  109  Mass. 
248;  Arnold  v.  Smith,  5  Day,  150; 
Brush  V.  Taggart,  7  Johns.  R.  19; 
Rathbun  v.  Ross,  46  Barb.  127;  Real, 
in  re,  55  Barb.  186;  Baskin  v.  See- 
christ,  6  Penn.  St.  154;  Stebbins  v. 
Cooper,  4  Denio,  191;  Duvall  v. 
Peach,  1  Gill  (Md.),  172;  Myers  v. 
Smith,  27  Md.  91;  Glascock  v.  Nave, 
15  Iiid.  457;  Reilly  v.  Cavanagh,  29 
Ind.  435;  State  v.  Thompson,  19  Iowa, 
299;  Flournoy  v.  Newton,  8  Ga.  306; 
Rutherford  v.  Crawford,  53  Ga.  138; 
Kennedy  v.  Reynolds,  27  Ala.  364; 
State  V.  Longineau,  6  La.  An.  700; 
State  {'.  Smith,  12  La.  An.  349;  Flynn 
V.  Ins.  Co.  17  La.  An.  135;  Brown  v. 
Wright,  4  Yerg.  57;  Bogart  v.  Green, 
8  Mo.  115;  State  v.  Edwards,  19  Mo. 
674. 

8  Peterson  v.  Taylor,  15  Ga.  483. 
*  Sheldon  v.  Frink,  12  Pick.  568. 


5  Spalding  v.  Saxton,  6  Watts,  338. 
«  Tice  V.  Reeves,  30  N.  J.  L.  314. 
''  Massonier  v.  Ins.  Co.  1   Nott   & 
M.  155. 

8  Ludlow  V.  Johnston,  3  Ohio,  553. 

9  Wynne  v.  Aubuchon,  23  Mo.  30. 
"  Dane  v.  Mallory,   IG   Barb.  46; 

Phillips  V.  Costley,  40  Ala.  486. 

11  "  It  is  a  rule  Avell  established  by 
authority,  that  when  one  claims  to 
hold  another's  property  under  statu- 
tory proceedings,  as  under  a -sale  for 
taxes,  he  must  show  that  every  ma- 
terial provision  designed  for  the  se- 
curity of  the  persons  taxed,  for  their 
protection,  has  been  substantially  com- 
plied with,  otherwise  the  claim  will 
fail.  In  fact  the  rule  is  generally 
laid  down  with  much  more  strictness. 
Bloom  V.  Burdick,  1  Hill,  131;  Sharp 
V.  Spier,  4  Hill,  76;  Doughty  c.  Hope, 
3  Denio,  594;  Whitney  c.  Thomas, 
23  N.  Y.  281  ;  Van  Rensselaer  v. 
Wltbeck,  3  Seld.  517;  People  v.  Che- 
nango Sup'rs,  1  Kern.  563;  Thacher  v. 
Powell,  6  Wheat.  119.  The  cases  of 
Swift  V.  The  City  of  Poughkeepsie 
(37  N.  Y.  513),  and  Barhyte  v.  Shep- 
lierd  (35  N.  Y.  251),  have  not  changed 
this  rule."  Peckham,  J.,  Cruger  i'. 
Dougherty,  43  N.  Y.  121. 

75 


§64.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


reference;^  of  Ji  binding  over  for  a  crime ;  ^  of  conviction  of  a 
crime  ;  ^  of  a  bastardy  order ;  ^  of  the  desertion  of  a  soldier,  of 
which  tliere  is  an  official  record  ;  ^  of  the  action  of  a  town  meet- 
ing as  to  wliich  a  record  is  required  to  be  kept  ;  ^  of  the  time  of 
the  terms  of  a  court ; "  of  a  bankrupt  discharge ;  ^  of  the  insti- 
tution of  suits  ;  ^  of  tlie  character  of  the  pleadings  and  docket 
proceedings.^^ 

§  64.  But  as  Avith  contracts,  so  with  records,  collateral  inci- 
Incidents  dents,  not  of  record,  may  be  proved  by  parol.''^  Thus 
to  records  parol  evidence  has  been  held  admissible,  to  prove  that 
proved^by  *^^  records  relate  to  the  same  cause  of  action, ^^  though 
parol.  in  such  cases  the  records  must  be  first  put  in  evidence  ;  ^^ 

to  show  the  cause  of  action  of  a  judgment  when  not  set  forth  by 


^  Grimes  v.  Grimes,  1  Dane,  234. 
2  Smith  V.  Smith,  43  N.  H.  536. 

8  People  V.  Reinhardt,  39  Cal.  449; 
Clements  v.  Brooks,  13  N.  H.  92; 
Com.  V.  Quinn,  5  Gray,  478;  Ne-w- 
comb  V.  Griswold,  24  N.  Y.  298 ;  Peck 
V.  Yorks,  47  Barb.  131;  Johnson  v. 
State,  48  Ga.  116.  See,  as  qualifying 
this,  infra,  §§  77,  541-42;  and  see  §  64. 

*  Tyrrel  v.  Woodbridge,  27  N.  J, 
L.  (3  Dutch.)  416. 

6  Terrell  v.  Colebrook,  35  Conn. 
188;  though  see  Wilson  v.  McClure, 
50  111.  366.     See  supra,  §  61. 

6  Cameron  v.  School  Dist.  42  Vt. 
507. 

■^  Michener  v.  Lloyd,  16  N.  J.  Eq. 
38. 

*  Regan  v.  Regan,  72  N.  C.  195. 

9  Sherman  v.  Smith,  20  111.  350; 
Hughes  V.  Christy,  26  Tex.  230. 

10  Foster  v.  Trull,  12  Johns.  R.456; 
Harker  v.  Dement,  9  Gill,  7;  Reilly 
V.  Cavanagh,  29  Ind.  435;  Milan  v. 
Pemberton,  12  Mo.  598;  Flynn  v.  Ins. 
Co.  17  La.  An.  135;  Gliddon  v.  Goos, 
21  La.  An.  682. 

"  Infra,  §  991;  Frost  v.  Shapleigh, 
7  Greenl.  236  ;  Mathews  v.  Bowman, 
25  Me.  157  ;  Torrey  v.  Berry,  36  Me. 
76 


589 ;  Sturtevant  t\  Randall,  53  Me. 
149  ;  Bassett  v.  Marshall,  9  Mass. 
312;  Pease  v.  Smith,  24  Pick.  122. 
See  Wabash  Canal  v.  Rheinhart,  22 
Ind.  463  ;  Massey  v.  Westcott,  40  111. 
160  ;  Dowling  v.  Hodge,  2  McMul. 
209  ;  Doty  v.  Brown,  4  Comst.  71  ; 
Dunckel  v.  Wiles,  11  N.  Y.  420  ; 
White  V.  Madison,  26  N.  Y.  117  ; 
McKnight  v.  Devlin,  52  N.  Y.  399. 

12  And  see  R.  v.  Bird,  2  Den.  C.  C. 
94;  5  CoxC.  C.  20;  Perkins  y.  Walker, 
19  Vt.  144;  Com.  v.  Dellane,  11  Gray, 
67;  Com.  v.  Sutherland,  109  Mass.  342; 
Davisson  v.  Gardner,  10  N.  J.  L.  289; 
Butler  V.  Slam,  50  Penn.  St.  456 ;  Fed- 
eral Hill  Co.  V.  Mariner,  15  Md.  224  ; 
Porter  v.  State,  1 7  Ind.  415;  Duncan  v. 
Com.  6  Dana,  295;  Shirley  v.  Fearne, 
33  Miss.  653;  State  i;.  Andrews,  27 
Mo.  267  ;  State  v.  Scott,  31  Mo.  121; 
State  V.  Thornton,  37  Mo.  360;  State 
V.  De  Witt,  2  Hill  (S.  C),  292  :  Rake 
V.  Pope,  7  Ala.  161  ;  State  v.  Mat- 
thews, 9  Port.  370.  See  fully,  infra, 
§  988. 

13  Webb  V.  Alexander,  7  Wend. 
281  ;  Inman  v.  Jenkins,  3  Ohio, 
271. 


CHAP.  111.] 


PRIMARINESS    AS   TO   DOCUMENTS. 


[§65. 


the  record ;  ^  to  prove  that  a  judgment  against  an  indorser  was 
not  intended  to  pass  as  collateral  to  a  judgment  against  the 
principal ;  "^  to  prove  that  a  new  cause  of  action  was  introduced 
by  an  amendment  to  a  declaration,  thereby  discharging  an  at- 
tachment ;  ^  to  identify  property  levied  on;  *  to  prove  that  a  judg- 
ment was  put  in  evidence  in  a  former  suit ;  ^  to  prove  that  parties 
interested  united  in  limiting  a  lien  ;  ^  to  prove  the  alteration  of 
a  record ; '  to  prove  the  death  of  an  ex  officio  administrator  ;  ^  to 
prove  iiittendance  on  court  as  a  witness ;  '^  to  prove  a  jurat  of 
town  officers,  in  lack  of  record ;  ^^  to  prove  that  a  particular  per- 
son had  been  in  prison ;  ^^  to  prove  the  attendance  of  juries  and 
of  judges  as  parts  of  a  trial ;  ^^  to  explain  the  date  of  a  writ.^"^ 

§  65.   Wherever  a  statute  requires  that  a  record  should  be  kept 
by  law,  then  the  record  is  the  proper  evidence  of  such    of  admin- 
acts/*  and  the  acts  can  be  primarily  proved  only  by   J-ecm'^r 
the   record.      Thus  parol   evidence  of   a  person's   en-   p**""*^^  ?^7" 

•I  ^  dence  is  m- 

listment  into  the  military  service  of  the  United  States  admissible . 
is  not  admissible.i^  Nor  is  a  certificate  officially  signed  by  the 
provost  marshal  of  the  district,  that  the  plaintiff  "has  this  day 
been  credited  as  a  recruit  in  the  navy  to  the  "  defendant  town, 
"  by  order  of  the  A.  A.  Pro.  Mar,  Gen.  of  Maine,"  legal  evidence 
of  his  enlistment.^^  So  taxation,  if  the  records  are  not  lost,  can 
only  be  proved  by  the  record.^'^ 

"^^  Hathaway  r.  Addison,  48  Me. 
440. 

"  Real  V.  People,  42  N.  Y.  270; 
Howser  v.  Com.  51  Penn.  St.  332. 

12  Massey  v.  Westcott,  40  111.  160. 

1^  Johnson  I'.  Farwell,  7  Me.  370; 
Society  Prop.  Gospel  v.  Whitcoiub,  2 
N.  H.  227. 

"  Supra,  §§  60,  61. 

1*  Atwood  t>.  Winterport,  60  Me. 
250.  See  Terrell  v.  Colebrook,  35 
Conn.  188. 

1^  Atwooil  V.  Winterport,  60  Me. 
250.  "  The  fact  of  enlistment  is  a 
matter  of  record.  It  must  be  proved 
by  a  duly  authenticated  copy  from 
the  army  records.     A  sworn  copy  is 


1  Miles  V.  Caldwell,  2  Wall.  35  ; 
Parker  v.  Thompson,  3  Pick.  429 ; 
Dunlap  V.  Glidden,  34  Me.  517  ;  Sted- 
man  v.  Patchin,  34  Barb.  218;  Jus- 
tice V.  Justice,  3  Ired.  L.  58 ;  Walsh 
V.  Harris,  10  Cal.  391.  See  fully, 
§  986. 

2  Bank  v.  Fordyce,  9  Penn.  St.  275. 
See  Darling  v.  Dodge,  36  Me.  370. 

8  Freeman    v.   Creech,    112    Mass. 
180. 
*  Darling  v.  Dodge,  36  Me.  370. 
'  Denny  v.  Moore,  13  Ind.  418. 
«  Sankey  i'.  Reed,  12  Penn.  St.  95. 
'  Brier  v.  Woodbury,  1  Pick.  362. 
8  Saltonstall   v.  Riley,  28  Ala.  164. 
»  Baker  v.  Brill,  15  Johns.  R.  260. 


"  Pittsfield  V.  Barnstead,  38  N.  II.  115  ;  Farrar  v.  Fessenden,  39  N.  H.  268. 

77 


§66.] 


THE   LAW    OF   EVIDENCE. 


[book  I. 


§  G6.  Tlie  probate  of  a  will  is  a  copy  of  the  will  under  the  seal 
Probat  of  ^^  *^^^  i^robate  court,  with  "a  certificate  stating  that 
will  neces-  the  Original  Avill  has  been  duly  proved  and  registered, 
mission  of  and  tliat  administration  of  the  goods  of  the  deceased 
has  been  granted  to  one  or  more  of  the  executors  named 
therein."  ^  Without  this  proof,  the  will  itself,  as  a  title  to  property, 
or  as  giving  a  right  to  the  executor  or  administrator  to  sue,  can- 
not be  received  in  evidence.^  The  probate  may  be  proved  either 
by  producing  the  document  itself,^  or  the  register  from  the  court 
of  probate,  containing  an  entry  that  the  will  has  been  proved, 
and  probate  granted,^  or  a  certified  or  examined  copy  of  such  reg- 
ister.^ Under  local  statutes,  this  admissibility  extends  to  certi- 
fied copies  of  wills  and  probates  registered  in  other  states.^     But 


admissible,  or  a  copy  certified  by  the 
proper  certifying  officer.  But  the  cer- 
tificate ofTored  is  not,  and  does  not 
purport  to  be,  a  copy  of  any  recorded 
fact,  or  of  any  record.  It  is  the  asser- 
tion of  the  person  certifying  that  the 
fiict  therein  stated  is  true.  A  mere 
certificate  that  a  certain  fact  appears 
of  record,  without  the  production  of 
an  authenticated  copy  of  the  record, 
is  not  evidence  of  the  existence  of  the 
fact.  Owen  i'.  Boyle,  15  Me.  147. 
The  officer  certifying  should  certify 
a  transcript  of  the  record."  Appleton, 
C.  J.,  Atwood  V.  Winterport,  60  Me. 
252. 

1  Taylor's  Ev.  §  1426,  citing  Toller 
on  Ex.  58. 

^  Ibid.;  Jones  v.  Goodrich,  5  Moo. 
P.  C.  15  ;  Allen  v.  Dundas,  3  T.  R. 
125;  Ryvesr.  Wellington,  9  Beav.  5  79; 
Hood  V.  Barrington,  L.  R,  6  Eq.  218; 
Graham  v.  AVhitely,  26  N.  J.  L.  254  ; 
Cogswell  V.  Burtis,  1  Hoff".  (N.  Y.) 
198.  See  Doe  v.  Gunning,  7  A.  &  E. 
244.  As  to  conclusiveness  of  probate 
of  will,  see  infra,  §  811. 

^  In  such  case  the  seal  proves  it- 
self.    Kempton  v.  Cross,  Hardw.  108. 

*  Cox  V.  Allingham,  Jac.  514  ;  R.  v. 
Ramsbotham,    1  Lea.  25  n.;  Elden  v. 

78 


Keddell,  8  East,  187;  Jackson  v.  Lu- 
cett,  2  Caines,  363  ;  Russell  v.  Schuy- 
ler, 22  Wend.  277. 

5  Taylor's  Ev.  §  1427  ;  R.  v.  Phill 
pott,   2   Den,   308  ;  Dorrett   v.  Meux 
15  C.  B.  142  ;  Fleeger  v.  Tool,  1  Mc 
Lean,  185;  Ackley  v.  Dygert,  33  Barb 
176  ;  Kenyon   i\   Stewart,    44  Penn 
St.  179  ;  Raborg  v.  Hammond,  2  Har 
&  G.  42  ;  Taylor  v.  Burnsides,  1  Grat, 
165;  Wynn  v.  Harman,  5  Grat.  157 
Rowland  v.  M'Gee,  4  Bibb,  439  ;  Mc 
Council   V.  Brown,   Litt.    (Ky.)  459 
Churchill  v.  Corker,  25   Ga.  479  ;  Doe 
V.  Roe,  31  Ga.  593. 

A  copy  of  the  probate  and  record 
of  a  will,  duly  certified  by  the  probate 
judge,  is  conclusive  evidence  of  the 
validity  of  the  will,  on  the  trial  of  a 
collateral  issue  between  a  stranger  and 
the  devisee,  respecting  the  property 
devised  ;  and  is  admissible  as  evidence 
on  the  trial  of  such  issue,  notwith- 
standing proceedings  to  contest  it  may 
be  pending  at  the  time  it  is  offered 
and  admitted  as  evidence.  Brown  v. 
Burdick,  25  Ohio  St.  260. 

«  McConnell  c.  Brown,  Litt.  (Ky.) 
459  ;  Knight  v.  AVall.  2  Dev.  &  B.  L. 
125  ;  Doe  v.  Roe,  31  Ga.  593  ;  Phebe 
v.  Quillin,  21  Ark.  490. 


CHAP.  III.]  PRIMARINESS   AS    TO   DOCUMENTS.  [§  68. 

the  probate  must  be  included  in  the  certificate.^  At  common 
law,  a  foreign  will,  which  is  not  admitted  to  probate  by  the  law 
of  the  forum,  must  be  proved  by  producing  the  will,  if  it  is  in 
existence  ;  if  it  be  lost,  by  proving  a  copy.^  When  a  probate  in 
one  state  is  offered  in  evidence  in  another,  the  record  is  primd 
facie  proof  of  its  allegations.^ 

§  67.  The  proof  of  letters  of  administration  depends  upon  the 
local  applicatory  law.     In  England  the  proof  is  made    Adminis- 
by  producing  the  register  or  act  book  containing  the   pjf|,\'.g"i  ^ 
grant,  or  an  exemplification  or  certified  copy  thereof  ;    lecord. 
or  by   producing  the   letters  themselves   under  the  seal  of  the 
court ;  either  of  which  modes  of  proof  is  primary  evidence.'^ 

§  68.  English  practice  was  for  some  time  disturbed  by  the 
question  whether  a  witness,  on  cross-examination,  could  p.^j.^j  ^^j, 
be  examined  as  to  the  contents  of  a  writing  not  yet  in    d'^'.'^^  of 

"  "^  writings 

evidence.  In  Queen  Caroline's  case,  in  1820,  the  fol-  not  admis- 
lowing  questions  Avere  put  by  the  house  of  lords,  and  cross-ex- 
the  following  answers  given  by  the  judges:^  "  Eirst, 
Whether,  in  the  courts  below,  a  party,  on  cross-examination, 
would  be  allowed  to  represent,  in  the  statement  of  a  question, 
the  contents  of  a  letter,  and  to  ask  the  witness  whether  the  wit- 
ness wrote  a  letter  to  any  person  with  such  contents,  or  con- 
tents to  the  like  effect,  without  having  first  shown  to  the  wit- 

1  Morris  v.  Kcyes,  1  Hill  (N.  Y.),  "  Sucli  recitals  are  not  conclusive,  it 
540  ;  Nichols  v.  Romaine,  3  Abb.  Pr.  is  true,  where  the  jurisdiction  of  the 
122  ;  Marr  v.  Gilliam,  1  Coldw.  488;  foreign  court  depends  upon  the  fact  of 
Bright  V.  White,  8  Mo.  422.  notice.  Carleton  v.  Bickford,  13  Gray, 

2  Graham  v.  Whiteley,  26  N.  J.  L.  591.  If  the  same  rule  applies  where 
254.  the   jurisdiction  exists,  but  the  notice 

8  "  The  objection  made  to  the  pro-  is  necessary  to  the  regularity  and  va- 

ceedings  in   Ithode  Island  is  that  they  lidity  of  the  proceedings   by  the   lex 

were  had  without  due   notice  to  par-  fori,    still  the    burden   of  imiieaching 

ties  interested.      The   record  of    the  them   for  that  cause  must  rest  upon 

original  proceedings,  by  which  a  copy  the  party  asserting  their  invalidity." 

of  the  will  was  ordered  to  be  filed  and  Wells,  J.,  Clark  v.  Blackinglon,   1 1<» 

recorded,  and   the   appellant  received  Mass.  374. 

letters  of  administration  in  llhode  Tsl-  *•  Taylor's  Kv.  §  142S,  citing  Komp- 

and,  has  the  recital,  'Notice  having  ton   v.    Cross,   llcp.   temp.  Hard.  IdS; 

been  duly  given  thereon,  pursuant  to  Elden   r.  Keddell,  8  East,  187  ;  Davis 

law.'     And  the  order  allowing  the  ac-  v.  Williams,  1.3  East,  232. 

count  recited  as  follows  :  'All  persons  ^  Best's  Evidence,  §  473;  2  B.  i^c  B. 

interested  in    the    settlement   of  said  28G. 
account  having  had  legal  notice.' 

79 


§  68.]  THE    LAW   OF   EVIDENCE.  [BOOK  I. 

ness  tlie  letter,  and  having  asked  that  witness  whether  the 
witness  wrote  that  letter,  and  his  admitting  that  he  wrote  such 
letter?  "  "  Secondly,  Whether,  when  a  letter  is  produced  in  the 
courts  below,  the  court  would  allow  a  witness  to  be  asked,  upon 
showing  the  witness  only  a  part  of  or  one  or  more  lines  of  such 
letter  and  not  the  whole  of  it,  whether  he  wrote  such  part  or 
such  one  or  more  lines ;  and  in  case  the  witness  shall  not  admit 
that  he  did  or  did  not  write  the  same,  the  witness  can  be  exam- 
ined to  the  contents  of  such  letter  ?  "  "  Thirdly,  Whether,  when 
a  witness  is  cross-examined,  and,  upon  the  production  of  a  letter 
to  the  witness  under  cross-examination,  the  witness  admits  that 
he  wrote  that  letter,  the  witness  can  be  examined  in  the  courts 
below  whether  he  did  not,  in  such  letter,  make  statements  such 
as  the  counsel  shall,  by  questions  addressed  to  the  witness,  in- 
quire are  or  are  not  made  therein ;  or  whether  the  letter  itself 
must  be  read  as  the  evidence  to  manifest  that  such  statements 
are  or  are  not  contained  therein ;  and  in  what  stage  of  the  pro- 
ceedings, according  to  the  practice  of  the  courts  below,  such 
letter  could  be  required  by  counsel  to  be  read  or  be  permitted  by 
the  court  below  to  be  read  ?  "  The  first  of  these  questions  the 
judges  answered  in  the  negative,  on  the  ground  that  "  The  con- 
tents of  every  written  paper  are,  according  to  the  ordinary  and 
well  established  rules  of  evidence,  to  be  proved  by  the  paper 
itself,  and  by  that  alone,  if  the  paper  be  in  existence ;  the  proper 
course,  therefore,  is  to  ask  the  witness  whether  or  no  that  letter 
is  of  the  handwriting  of  the  witness.  If  the  witness  admits  that 
it  is  of  his  or  her  handwriting,  the  cross-examining  counsel  may, 
at  his  proper  season,  read  that  letter  as  evidence,  and,  when  the 
letter  is  produced,  then  the  whole  of  the  letter  is  made  evidence. 
One  of  the  reasons  for  the  rule  requiring  the  production  of  vrrit- 
ten  instruments  is,  in  order  that  the  court  may  be  possessed  of 
the  whole.  If  the  course  which  is  here  proposed  should  be  fol- 
lowed, the  cross-examining  counsel  may  put  the  court  in  posses- 
sion only  of  a  part  of  the  contents  of  the  written  paper  ;  and 
thus  the  court  may  never  be  in  possession  of  the  whole,  though 
it  may  happen,  that  the  whole,  if  produced,  may  have  an  effect 
very  different  from  that  which  might  be  produced  by  a  state- 
ment of  a  part."  The  first  part  of  the  second  question,  namely, 
"  Whether,  when  a  letter  is  produced  in  the  courts  below,  the 
80 


CHAP.  III.]  PRIMARINESS   AS   TO   DOCUMENTS.  [§  68. 

court  would  allow  a  witness  to  be  asked,  upon  showing  the  wit- 
ness only  a  part  or  one  or  more  lines  of  such  letter,  and  not  the 
whole  of  it,  whether  he  wrote  such  part?"  the  judges  thought 
should  be  answered  by  them  in  the  affirmative  in  that  form ; 
but  to  the  latter,  "  and  in  case  the  witness  shall  not  admit  that 
he  did  or  did  not  write  such  part,  whether  he  can  be  examined 
as  to  the  contents  of  such  letter,"  they  answered  in  the  negative, 
for  the  reasons  already  given,  namely,  that  the  paper  itself  is  to 
be  produced,  in  order  that  the  whole  may  be  seen,  and  the  one 
part  explained  by  the  other.  To  the  first  part  of  tlie  third  ques- 
tion, Lord  Chief  Justice  Abbott  answered  as  follows :  "  The 
judges  are  of  opinion,  in  the  case  propounded,  that  the  counsel 
cannot,  by  questions  addressed  to  the  witness,  inquire  whether 
or  no  such  statements  are  contained  in  the  letter  ;  but  that  the 
letter  itself  must  be  read  to  manifest  whether  such  statements 
are  or  are  not  contained  in  that  letter.  In  delivering  this  opin- 
ion to  your  lordships,  the  judges  do  not  conceive  that  they  are 
presuming  to  offer  to  your  lordships  any  new  rule  of  evidence, 
now  for  the  first  time  introduced  by  them  ;  but  that  they  found 
their  opinion  upon  what,  in  their  judgment,  is  a  rule  of  evi- 
dence as  old  as  any  part  of  the  common  law  of  England,  namely, 
that  the  contents  of  a  written  instrument,  if  it  be  in  existence, 
are  to  be  proved  by  that  instrument  itself,  and  not  by  parol  evi- 
dence." To  the  latter  part  of  the  question  he  returned  for 
answer:  "The  judges  are  of  opinion,  according  to  the  ordinary 
rule  of  proceeding  in  the  courts  below,  the  letter  is  to  be  read 
as  the  evidence  of  the  cross-examining  counsel,  as  part  of  his 
evidence  in  his  turn,  after  he  shall  have  opened  his  case ;  that 
that  is  the  ordinary  course  ;  but  that,  if  the  counsel  who  is  cross- 
examining  suggests  to  the  court  that  he  wishes  to  have  the  let- 
ter read  immediately,  in  order  that  he  may,  after  the  contents  of 
that  letter  shall  have  been  made  known  to  the  court,  found  cer- 
tain questions  upon  the  contents  of  that  letter,  to  be  projjounded 
to  the  witness,  which  could  not  well  or  effectually  be  done  with- 
out reading  the  letter  itself,  that  becomes  an  excepted  case  in  the 
courts  below,  and  for  the  convenient  administration  of  justice,  the 
letter  is  permitted  to  be  read  at  the  suggestion  of  the  counsel, 
but  considering  it,  however,  as  part  of  the  evidence  of  the  coun- 

VOL.  I.  6  81 


§  68.]  THE   LAW    OF   EVIDENCE.  [BOOK  I. 

sel  proposing  it,  and  subject  to  all  the  consequences  of  having 
such  letter  considered  us  part  of  his  evidence." 

The  following  additional  question  was  then  put :  "  Whether, 
according  to  the  established  practice  in  the  courts  below,  counsel 
cross-examining  are  entitled,  if  the  counsel  on  the  other  side  ob- 
ject to  it,  to  ask  a  witness  whether  he  has  made  representations 
of  a  particular  nature,  not  specifying  in  his  question  whether  the 
question  refers  to  representations  in  writing  or  in  words?  "  Ab- 
bott, C.  J.,  dehvered  the  following  answer  of  the  judges  :  "  The 
judges  find  a  difficulty  to  give  a  distinct  answer  to  the  question 
thus  proposed  by  your  lordships,  either  in  the  affirmative  or  neg- 
ative, inasmuch  as  we  are  not  aware  that  there  is,  in  the  courts 
below,  any  established  practice  which  we  can  state  to  your  lord- 
ships as  distinctly  referring  to  such  a  question  propounded  by 
counsel  on  cross-examination,  as  is  here  contained  ;  that  is, 
whether  the  counsel  cross-examining  are  entitled  to  ask  the  wit- 
ness whether  he  has  made  such  representation  ;  for  it  is  not  in  the 
recollection  of  any  one  of  us  that  such  a  question,  in  those  words, 
namely,  '  whether  a  witness  has  made  such  and  such  representa- 
tion,' has  at  any  time  been  asked  of  a  witness.  Questions,  how- 
ever, of  a  similar  nature  are  frequently  asked  at  nisi  prius,  refer- 
ring rather  to  contracts  and  agreements,  or  to  supposed  contracts 
and  agreements,  than  to  declarations  of  the  witness ;  as,  for  in- 
stance, a  witness  is  often  asked  whether  there  is  an  agreement  for 
a  certain  price  for  a  certain  article,  —  an  agreement  for  a  certain 
definite  time,  —  a  warranty,  —  or  other  matter  of  that  kind  being 
matter  of  contract ;  and  when  a  question  of  that  kind  has  been 
asked  at  nisi  prius,  the  ordinary  course  has  been  for  the  counsel  on 
the  other  side  not  to  object  to  the  question  as  a  question  that  could 
not  properly  be  put,  but  to  interpose,  on  his  own  behalf,  another 
intermediate  question ;  namely,  to  ask  the  witness  whether  the 
agreement  referred  to  in  the  question  originally  proposed  by  the 
counsel  on  the  other  side  was  or  was  not  in  writing ;  and,  if  the 
witness  answers  that  it  was  in  writing,  then  the  inquiry  is 
stopped,  because  the  writing  must  be  itself  produced.  My  lords, 
therefore,  although  we  cannot  answer  your  lordshins'  question 
distinctly  in  the  aifirmative  or  the  negative,  for  the  reason  I  have 
given,  namely,  the  want  of  an  established  practice  referring  to 
such  a  question  by  counsel ;  yet,  as  we  are  all  of  opinion  that 
82 


CHAP.  III.]  PRIMARINESS   AS   TO   DOCUMENTS.  [§  68. 

the  witness  cannot  properly  be  asked,  on  cross-examination, 
whether  he  has  written  such  a  thing  (the  proper  course  being 
to  put  the  writing  into  his  hands,  and  ask  him  whether  it  be  his 
writing),  considering  the  question  proposed  to  us  by  your  lord- 
ships, with  reference  to  that  principle  of  law  which  requires  the 
writing  itself  to  be  produced,  and  with  reference  to  the  course 
that  ordinarily  takes  place  on  questions  relating  to  contracts  or 
agreements,  we,  each  of  us,  think,  that  if  such  a  question  were 
propounded  before  us  at  nisi  prius,  and  objected  to,  we  should 
direct  the  counsel  to  separate  the  question  into  its  parts.  My 
lords,  I  find  I  have  not  expressed  myself  with  the  clearness  I  had 
wished,  as  to  dividing  the  question  into  parts.  I  beg,  therefore, 
to  inform  the  house,  that,  by  dividing  the  question  into  parts,  I 
mean  that  the  counsel  would  be  directed  to  ask  whether  the  rep- 
resentation had  been  made  in  writing  or  by  words.  If  he  should 
ask,  Avhether  it  had  been  made  in  writing,  the  counsel  on  the 
other  side  would  object  to  the  question  ;  if  he  should  ask  whether 
it  had  been  made  by  words,  that  is,  whether  the  witness  had  said 
so  and  so,  the  counsel  would  undoubtedly  have  a  right  to  put  that 
question,  and  probably  no  objection  would  be  made  to  it." 

On  commenting  on  the  above  procedure,  Mr.  Best  remarks 
that  the  rule  that  counsel  who  has  a  document  in  his  possession 
shall  not  represent  its  contents  to  a  witness,  "  may  possibly  be 
defended  on  the  ground  that  whoever  uses  a  document  in  a  court 
of  justice  has  no  right  to  suppress  any  part  of  it,  or  prevent  its 
speaking  for  itself  ;  although  the  fitness  of  extending  even  this 
principle  to  evidence  extra  causam  is  not  beyond  dispute.  But 
whether  a  witness  may  be  asked,  with  a  view  to  test  his  memory 
or  credit,  if  he  has  ever  made  a  representation,  not  specifying 
whether  verbal  or  written  ;  or  has  written  a  letter,  not  saying  to 
whom,  when,  or  under  what  circumstances  ;  in  which  representa- 
tion or  letter  he  has  made  statements  inconsistent  with  the  evi- 
dence given  by  him  in  causa,  is  a  much  larger  question.  It  iuis 
been  suggested  that  the  above  answers  of  the  judges  have  not 
resolved  this  point  in  the  negative,  and  that  they  were  all  based 
on  the  assumption  that  the  letter  was  in  the  possession  of  the 
cross-examining  counsel.  In  practice,  however,  a  different  con- 
struction is  put  upon  them  ;  and  we  should  at  once  dismiss  the 
subject,  had  not  that  practice  been  condemned  by  text  writers 

83 


§68.] 


THE  LAW   OF   EVIDENCE. 


[dook  I. 


on  the  law  of  evidence,^  and  the  practice  founded  on  them  been 
recently  modified  by  the  legislature.  And  here  it  may  be 
doubted  how  far  the  proceedings  in  Queen  Caroline's  case  are 
binding  on  tribunals,  the  answers  of  the  judges  to  the  house  of 
lords  having  no  binding  force  per  se  ;  and  although  in  that  case 
the  house  adopted  and  acted  on  those  answers,  it  was  not  sitting 
judicially,  but  with  a  view  to  legislation,  which  finally  proved 
abortive."  ^ 

In  New  York  the  rule  in  Queen  Caroline's  case  has  been  so  far 
recognized  as  to  preclude  the  proving,  on  cross-examination,  by 
parol,  a  written  instrument.^  It  has  been  also  explicitly  held 
that  when  a  witness  is  cross-examined  as  to  whether  he  wrote 
a  letter  containing  certain  statements,  the  writing  must  be  first 
shown  to  the  witness.^  Merely  showing  the  letter  to  the  wit- 
ness is  in  any  view  insufficient.  He  must  have  time  to  notice  its 
contents.^ 


1  See  Taylor's  Ev.  §  1301;  Stark. 
Ev.  226-7. 

2  Best's  Evidence,  §  474.  The  an- 
swers of  the  judges  in  Queen  Caro- 
line's case  were  condemned  by  the 
common  law  commissioners  of  1850, 
and  at  length  received  the  condemna- 
tion of  the  legislature.  The  17&  18 
Vict.  c.  125,  §  24,  following  almost 
verbatim  the  recommendation  of  those 
commissioners,  enacts  :  "  A  witness 
may  be  cross-examined  as  to  previous 
statements  made  by  him  in  writing,  or 
reduced  into  writing,  relative  to  the 
subject  matter  of  the  cause,  without 
such  writing  being  shown  to  him ;  but 
if  it  is  intended  to  contradict  such  wit- 
ness by  the  writing,  his  attention  must, 
before  such  contradictory  proof  can  be 
given,  be  called  to  those  parts  of  the 
writing  which  are  to  be  used  for  the 
purpose  of  so  contradicting  him  :  Pro- 
vided, always,  that  it  shall  be  compe- 
tent for  the  judge,  at  any  time  during 
the  trial,  to  require  the  production  of 
the  writing  for  his  inspection,  and  he 
may  thereupon  make  such  use  of  it  for 
the  purposes  of  the  trial  as  he  shall 

84 


think  fit."  By  sect.  103,  the  enact- 
ments in  this  section  are  extended  to 
every  court  of  civil  judicature  in  Eng- 
land and  Ireland;  and  28  Vict.  c.  18, 
sees.  I  and  5,  extends  them  to  criminal 
cases. 

2  Speyer  v.  Stern,  2  Sweeny,  516; 
Newcomb  v.  Griswold,  24  N.  Y.  298 ; 
Gaffney  v.  People,  50  N.  Y.  223,  cited 
infra. 

*  Stephens  v.  People,  19  N.  Y.  549; 
Stamper  v.  Griffin,  12  Ga.  450;  Calla- 
nan  v.  Shaw,  24  Iowa,  441.  Contra, 
Randolph  v.  Woodstock,  35  Vt.  291. 

^  Morrison   v.  Myers,  11  Iowa,  538. 

"It  is  competent  for  a  party  on 
the  trial  to  prove  that  a  witness,  on 
the  part  of  his  adversary,  has  made 
oral  statements  inconsistent  with  evi- 
dence upon  a  material  question  given 
by  such  witness  on  the  trial,  for  the 
purpose  of  impeaching  the  credibility 
of  a  witness,  and  weakening  the  force 
of  the  evidence.  But  it  is  requisite 
that  the  party  offering  the  impeaching 
evidence  should  first  call  the  attention 
of  the  witness  to  the  circumstances  un- 
der which  the  statements  were  made, 


CHAP.  III.] 


PRIMARINESS   AS   TO   DOCUMENTS. 


[§71. 


Statutory- 
designa- 
tion of  evi- 
dence not 
necessarily 
exclusive. 


§  69.  A  statute  which  prescribes  certain  kind  of  evidence  as 
proof  of  certain  facts  does  not,  unless  it  expressly  so  pro- 
vides, exclude  other  proof  of  such  facts  when  the  statu- 
tory proof  cannot  be  had.^  Thus  where  the  proceedings 
of  directors,  commissioners,  public  trustees,  and  the 
like,  are  entered  in  books,  the  fact  that  such  books  are 
rendered  by  statute  admissible  in  evidence  does  not  exclude 
parol  proof  of  what  has  taken  place  at  the  respective  meetings.^ 

§  70.  As  illustrations  of  the  doctrine  that  primary  evidence  is, 
in  the  sense  before  us,  that  which  is  immediate,  we  may  "primary" 
mention  the  case  of  a  newspaper,  when  the  question  is,  u  j^^^e^i. 
what  the  newspaper  published.  For  this  purpose,  the  ^t^." 
original  manuscript  from  which  the  paper  is  printed  is  second- 
ary ;  and  a  written  copy  or  reprint  by  third  parties  of  the  news- 
paper is  secondary ;  the  primary  evidence,  receivable  as  such,  is 
the  newspaper  itself,  as  issued  by  the  party  whose  liability  it  is 
sought  to  establish.^ 

§  71.  Much  confusion  has  arisen  from  the  ambiguity  of  the 
terms  which  are  used  .to  designate  the  evidence  which  The  test  is, 
is  thus  excluded.  Mr.  Bentham  ^  distinguishes  the  two  "°'^^  '{lllf "'" 
classes  as  "orisdnal"  and    "unoriginal;"  which  ]\Ir.   Jmmediate- 

o  »  ness  of  im- 

Best,  though  following  in  most  points  Mr.  Bentham,   pression. 
changes  into  "original"  and  "  derivative."     But  this  is  scarcely 
exact,  as  there  is  no  evidence  that  is  not  in  some  sense  "  origi- 
nal ;  "  none  that  is  not  in  some  sense  "  derivative."  ^     The  dis- 


that  he  may  have  an  opportunity  of 
correcting  the  evidence  given  on  the 
trial,  or  of  explaining  the  apparent  in- 
consistency between  his  evidence  and 
his  former  statements.  The  reason  of 
the  rule  applies  as  strongly  to  written 
as  to  oral  statements  made  by  the  wit- 
ness ;  and  when  his  evidence  is  sought 
to  be  impeached  by  written  state- 
ments, alleged  to  have  been  made  by 
him,  the  writing  should  be  first  pro- 
duced, so  that  he  may  have  an  oppor- 
tunity for  inspection  and  examination. 
And  as  the  writing  is  the  best  evi- 
dence of  the  statement  made  by  the 
witness  therein,  questions  as  to  the 
contents  are  not  ordinarily  admissible. 


The  Queen's  case,  2  B.  &  B.  287 ; 
Newcomb  v.  Griswold,  24  N.  Y.  298  ; 
Greenleaf  on  Evidence,  §  4G3  ;  2  Thil- 
lips  on  Evidence,  962."  Andrews, 
J.,  Gaffney  v.  The  People,  50  N.  Y. 
223. 

^  Kendall  v.  Kingston,  5  Mass.  524; 
Green  v.  Gill,  8  Mass.  Ill  ;  Com.  v. 
Cutter,  8  Mass.  279;  Bovee  v.  Mc- 
Lean, 24  Wise.  225. 

2  Miles  r.  Bough,  3  Q.  B.  845  ;  Inglis 
V.  R.  R.  1  Macq.  Sc.  Ca.  H.  of  L.  112. 

8  Brunswick  v.  Ilarmer,  14  Q.  B. 
185;  R.  V.  Amphlit,  G  D.  &  R.  126; 
Bond  V.  Bank,  2  Ga.  92. 

*  Rat.  Jnd.  Ev.  book  vi.  chap.  iii. 

">  See  supra,  §  8,  15. 

85 


§  72.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

tinction  is  based  on  the  nearness  of  relation  of  the  witness  to  the 
thing  as  to  which  he  testifies ;  if  he  was  in  immediate  contact 
with  it,  or  separated  only  by  material  objects,  then  his  relation 
is  primary,  and  his  testimony  is  admitted  ;  if  he  is  separated  by 
the  agency  of  another  self-determining  "agent,  then  the  relation- 
ship is  broken,  and  his  testimony  is  not  admitted.  A.,  for  in- 
stance, sees  a  railroad  collision,  though  it  may  be  A.  is  half  blind, 
and  is  a  mile  off,  and  therefore  a  very  uncertain  observer.  A.  is 
an  admissible  witness,  because  his  relationship,  not  being  broken 
by  the  interposition  of  another  self-determining  agent,  is  im- 
mediate to  the  thing  testified  to.^  B.,  a  person  of  great  accuracy 
and  intelligence,  standing  close  to  the  scene  of  the  collision,  takes 
notes,  and  reads  these  notes  to  C,  who  is  called  as  a  witness,  and 
as  to  whose  accuracy  and  honesty  in  reproducing  B.'s  impressions 
there  can  be  no  doubt,  but  who  is  excluded,  because  he  does  not 
stand  in  immediate  relation  to  the  thing  testified  to,  but  this  rela- 
tion is  broken  by  the  interposition  of  B.  The  rule  may  in  such 
cases  work  hardly,  but  it  has  for  its  general  application  three  im- 
portant reasons :  firsts  by  going  to  first  hand,  greater  accuracy 
is  usually  attainable  ;  secondly,  it  is  for  the  adjudicating  tribunal 
to  adjust  degrees  of  credibility  to  such  witnesses  as  are  admitted  ; 
thirdly,  to  substitute  for  the  sworn  statements  of  immediate  ob- 
servers, tested  by  cross-examination,  the  impressions  received  by 
others  as  to  what  such  observers  said  when  unsworn  and  with- 
out cross-examination,  would  open  the  way  to  great  frauds. 

§  72.  A  series  of  witnesses  may  observe  a  particular  transac- 
No  pri-        ^^°^^ '  ^^®  impressions  of  some  may  be  strong,  the  im- 

mary  evi-  pressious  of  othcrs  may  be  faint :  but  the  faint  impres- 
dence  is         ^.         .  j  '  i 

rejected       sion  is  not  to  be  excluded  because  of  its  faintness,  nor 

bccflusG 

of  its  faint-  bccause  it  is  inferior,  in  respect  of  intensity,  to  the 
°^*^'  strong  impression.     In   other  words,  what   constitutes 

excluding  secondariness  is,  not  inferiority  as  to  capacity  to  testify 
accurately,  but  removal,  by  the  interposition  of  intelligent  media, 
from  the  thing  testified.  There  may  be  several  thousand  sheets, 
for  instance,  printed  from  the  same  type,  and  the  last  sheets 
printed  may  be  blurred  and  confused ;  but  the  last  is  as  much  an 
original  as  the  first ;  and  would  be  as  admissible  as  the  first ;  ^ 
while  a  written  copy  made  by  an  amanuensis  from  the  first 
1  U.  S.  V.  Gibert,  2  Sumn.  19.  2  gg^  ^uf^a  §§  92,  409. 

86 


CHAP.  III.]  PRIMARINESS   AS   TO   DOCUMENTS.  [§  72. 

would  be  excluded  because  secondiiry.^  Hence  comes  the  maxim, 
that  secondariiiess  goes  not  to  conclusiveness  but  to  grade. 
Secondary  evidence  is  excluded  not  merely  because  it  is  inferior, 
but  because  it  presupposes  more  accurate  and  immediate  evi- 
dence held  back  by  the  party  offering. ^  So,  among  witnesses 
standing  on  the  same  grade,  one  may  be  secondary  to  another  as 
to  trustworthiness,  but  this  does  not  exclude  him.  In  the  Tich- 
borne  case,  for  instance,  all  witnesses  who  claimed  to  have  known 
Roger  Tichborne  were  equally  admissible  as  primary  witnesses, 
though  some  were  near  relations  and  intimate  friends  of  Roger, 
while  others  had  been  merely  casual  acquaintances.  The  test  is, 
"  Do  you  testify  at  first  hand  ?  "  If  so,  no  matter  how  incredible 
may  be  the  testimony,  it  is  receivable,  so  far  as  concerns  the  pres- 
ent test.  So  the  testimony  of  a  mere  bystander  is  primary  evi- 
dence of  a  conversation  he  overhears,  though  not  likely  to  be  so 
accurate  as  that  of  a  participant.^  So,  as  will  hereafter  be  more 
fully  seen,  the  fact  that  the  alleged  writer  is  not  called  as  to 
the  forgery  of  his  signature,  does  not  exclude  other  witnesses.^ 
Yet  where  secondary  evidence  of  high  accuracy  is  kept  back  by 
a  party,  the  court  may  refuse  to  permit  him  to  produce  evidence 
of  an  inferior  type,  until  the  higher  be  accounted  for.^  If  a 
party  has  a  facsimile  of  a  lost  paper,  he  cannot  prove  such  paper 
by  calling  a  witness  as  to  its  contents.''  A  letter-book,  however, 
in  which  press  copies  are  taken,  is  held  to  be  so  far  a  copy  as  to 
stand  in  the  same  relation  to  the  original  as  do  copies  taken  from 
itself.  The  letter-book,  and  copies  taken  from  it,  are  equally 
secondary.'^ 

1  Bond  V.  Bank,  2  Ga.  92.  6  infra,  §  90  ;  Stevenson  r.  Hoy,  -13 

2  Morrison?;.  Cliapin,  97  Mass.  72;  Penn.  St.  191;  Ellis  v.   IIulV,  29  111. 
Lee  V.  Lee,  9  Penn.  St.  1G9  ;  Shoen-  449;  Harvey  v.  Thorpe,  28  Ala.  250. 
berger  v.  Haekman,  37  Penn.  St.  87  ;         ^  Stevenson  v.   Hoy,  43  Penn.   St. 
Richardson   v.  Milburn,   17  Md.   67  ;  191. 

Young  ('.  Mertens,  27  Md.  114;  Car-  ''  Tnfra,  §  93.     "  The  defendant,  l.y 

penter   v.    Dame,    10    Ind.   125;    Mo-  giving  notice   to  produce  the  original 

Creary  v.  Turk,  29  Ala.  244.  letters   written   by   him   to  the   plain- 

8  Peoples  i\  Smith,  8  Rich.  S.  C.  90.  tiff's,    had    entitled   liim.'iclf    to    prove 

*  R.  V.  Hazy,  2  C.  &  P.  458;   R.  v.  their  contents  by  secomlary  evidence. 

Hurley,  2    M.   &    Rob.  473  ;   Smith  v.  He  produced  coi)ies,  made  by  his  wife, 

Prescott,    17  Me.    277;    Ainswortli  v.  from  his   letter-book,   into   which  the 

Greenlee,   1    Hawks,   190  ;    McCaskle  originals  had   been   first  copied  by  a 

r.  Amarine,  12  Ala.  17.    Infra,  §§  705-  machine-press ;  and   testified  that  lie 

707.  had  compared  these  copies  with  those 

87 


§73.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


§  73.  As  a  general  principle  it  may  in  fact  be  stated  that  a 
written    copy  of   a    written   instrument  ("  transcripti- 

W^nttcn 

secondary     tious  "  evidence,  as  Mr.  Bentham  calls  it)  will  not  be 

inadmissi-     received  when  the  original  can  be  obtained.^     Nor  is  a 

^'  witness's  written  receipt  of  a  payment  admissible  when 


in  the  letter-book,  and  that  they  were 
correct.  He  also  testified  that  he  de- 
posited the  originals  in  the  post-oflice, 
directed  to  the  plaintiffs.  The  oiler 
to  send  for  the  letter-book,  and  pro- 
duce it  in  court,  if  desired,  must  be 
taken  at  least  to  relieve  the  defendant 
from  any  suspicion  that  the  letter- 
book  was  improperly  kept  back.  The 
objection  to  the  admissibility  of  the 
copies  stands,  therefore,  strictly  upon 
the  legal  ground  stated  ;  namely, 
*  that  they  were  not  copies  of  the  orig- 
inal, and  that  the  letter-book  itself 
would  be  the  best  evidence.' 

"  Whenever  a  copy  of  a  record  or 
document  is  itself  made  original  or 
primary  evidence,  the  rule  is  clear 
and  well  settled  that  it  must  be  a 
copy  made  directly  from,  or  compared 
with,  the  original.  If  the  first  copy 
be  lost,  or  in  the  hands  of  the  oppo- 
site party,  so  long  as  another  may  be 
obtained  from  the  same  source,  no 
ground  can  be  laid  for  resorting  to 
evidence  of  an  inferior  or  secondary 
character.  The  admission  of  a  tran- 
script from  the  record  of  a  deed,  or 
other  private  writing,  for  the  record 
of  which  provision  is  made  by  law,  is 
not  an  exception  to,  but  only  a  mod- 
ification of,  the  same  rule.  But  when 
the  source  of  original  evidence  is  ex- 
hausted, and  the  resort  is  properly 
had  to  secondary  proof,  the  contents 


of  private  writings  may  be  proved,  like 
any  other  fact,  by  indirect  evidence. 
The  admissibility  of  evidence  offered 
for  this  purpose  must  depend  upon  its 
legitimate  tendency  to  prove  the  facts 
sought  to  be  proved,  and  not  upon  the 
comparative  weight  or  value  of  one  or 
another  form  of  proof.  The  jury  will 
judge  of  its  weight,  and  may  give  due 
consideration  to  the  fact  that  a  less 
satisfactory  form  of  proof  is  offered, 
while  a  more  satisfactory  one  exists 
and  is  withheld,  or  not  produced  when 
it  might  have  been  readily  obtained. 
But  there  are  no  degrees  of  legal  dis- 
tinction in  this  class  of  evidence. 
Although  there  has  been  much  diver- 
sity of  practice,  and  the  decisions  are 
far  from  uniform,  more  frequently  turn- 
ing upon  special  circumstances  and 
facts  than  upon  a  general  principle; 
the  tendency  of  authority  is,  as  we 
think,  towards  the  establishment  of 
the  rule  here  stated.  2  Phil.  Ev. 
(4th  Am.  ed.)  568;  1  Greenl.  Ev. 
§§  84,  582  ;  Stetson  v.  Gulliver,  2 
Cush.  494  ;  Robertson  v.  Lynch,  18 
Johns.  451 ;  Winn  v.  Patterson,  9  Pet. 
G63  ;  Brown  v.  Woodman,  6  C.  &  P. 
206;  Doe  v.  Ross,  7  M.  &  W.  102. 
"In  this  case  the  letter-book,  if  pro- 
duced, would  have  been  only  second- 
ary evidence.  We  are  satisfied  that 
the  copies  admitted  by  the  court  below 
were   sufficiently   verified    to    justify 


1  Bird  V.  Bird,  40  Me.  392;  Putnam  Bealle,  20    Ga.    275     Cloud  o.   Hart- 

V.   Goodall,  31   N.  H.  419;  Torrey  v.  bridge,  28  Ga.  272;  Knight  ??.  Knight, 

Fuller,  1  Mass.  524;  Wallace  v.  Brad-  12  La.  An.  396;  Lawrence  v.  Grout, 

shaw,  6  Dana,  382;  Davidson  v.  Da-  12  La.  An.  835. 
vidson,   10  B.  Mon.  115;  Robinson  v. 


CHAP.  III.] 


PRLMAPJNESS   AS   TO   DOCUMENTS. 


[§74. 


Counter- 
parts may 
be  received 
singly;  but 


be  can  be  bad  to  prove  sucb  payment  on  bis  personal  examina- 
tion.^ 

§  74.  Wben  a  contract  is  executed  in  counterparts,  eacb  party 
signing  only  tbe  counterpart  by  wbicb  be  is  bound,  and 
delivering  sucb   counterpart  to  tbe  otber  party,  eacb 
counterpart  is  primary  evidence  against  tbe  party  sign- 
ing it  and  tbose  claiming  under  bim,^  and  may  be  read   5°'  f°  . 
'^  _  ^  '  ''  _        duplicates 

in  evidence,  against  tbe  otber  party,  as  secondary,  in 
case,  after  notice,  be  sbould  fail  to  produce  tbe  counterpart  in 
bis  bands.3  Wben,  bowever,  solemn  instruments  are  executed 
in  duplicates  or  triplicates,  all  must  be  accounted  for,  so  bas  it 
been  intimated,  wben  eacb  bas  been  executed  by  all  tbe  parties.* 
Eacb  is  primary  in  respect  to  tbe  otber,^  and  bence  comes  tbe 
conclusion  tbat  no  one  can  exclude  tbe  otber,  and  tbat  one  sbould 
not  be  received  in  tbe  absence  of  tbe  otber,  unless  sucb  absence 
sbould  by  some  proof,  bowever  faint,  be  explained.*' 


their  admission  as  competent  evidence 
of  the  contents  of  the  original  letters." 
Wells,  J.,  Goodrich  v.  Weston,  102 
Mass.  363. 

1  Ford  V.  Smith,  5  Cal.  314;  Lea- 
therbury  v.  Bennett,  4  Har.  &M.  392. 
But  see  McGregor  v.  Bugbee,  15  Vt. 
734. 

2  Roe  V.  Davis,  7  East,  363;  Car- 
lisle V.  Blamire,  8  East,  487;  Paul  v. 
Meek,  2  Y.  &  J.  116;  Houghton  v. 
Koenig,  18  C.  B.  235  ;  Stowe  v.  Quer- 
ner,  L.  R.  5  Exch.  155;  Cleveland  R. 
R.  V.  Perkins,  17  Mich.  296. 

8  Munn  V.  Godbold,  3  Bing.  292; 
S.  C.  11  Moore,  292;  Doe  v.  Ross,  7 
M.  &  W.  102;  Hall  v.  Ball,  3  M.  & 
Gr.  242;  Hawes  v.  Forster,  1  M.  & 
Rob.  368. 

4  Alivon  V.  Furnivall,  1  C,  M.  & 
R.  292,  by  Parke,  B. 

6  Colling  V.  Treweek,  6  B.  &  C.  398; 
IJrovvn  V.  Woodman,  6  C.  &  P.  206. 

^  See  Plillipson  v.  Chase,  2  Camp. 
Ill;  infra,  §  93. 

"  On  one  or  two  occasions,"  says 
Mr.  Taylor  (§§  90,  397),  "where  it 
was  necessary  to  show  that  the  plain- 


tiff's ancestor  had  exercised  acts  of 
ownership  over  the  property  in  ques- 
tion, counterparts  of  leases  older  than 
the  period  of  living  memory,  and  found 
in  the  ancestor's  muniment  room,  have 
been  admitted  in  evidence  even  against 
strangers,  though  they  were  executed 
by  no  one  but  the  persons  named  as 
lessees,  who  were  not  shown  to  have 
actually  held  under  them,  and  though 
no  excuse  was  given  for  not  producing 
the  original  leases  sealed  by  the  an- 
cestor. Doe  V.  Pulman,  3  Q.  B.  622; 
Clarkson  i'.  Woodhouse,  5  T.  R.  412; 
3  Dougl.  189.  It  is  diflicult  to  recon- 
cile these  decisions  with  strict  prin- 
ciple, since  the  counterparts  amounted 
in  fact  to  no  more  than  admissions  by 
third  parties  that  the  ancestor  was 
seised;  but  the  judges  appear  to  have 
rela.xed  the  rule,  in  consequence  of  the 
acknowledged  dilliculty  of  tracing  acts 
of  ownerslu|)  after  the  lapse  of  many 
years;  and  looking  at  the  (juestion  in 
this  light,  few  persons  will  feel  inclined 
to  (jiiarrcl  with  the  doctrine  as  now 
established." 

89 


§  75.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

§  75.  A  broker,  when  ho  closes  a  negotiation  as  the  common 

agent  of  both  parties,  enters  it  in  his  business  book,  and 

book  is"       gives  to  each  party  a  copy  of  the  entry.     If  there  be  no 

priinaiy  as    (»ntrY,  lie  cfives  simplv  notes  or  memoranda  of  the  trans- 
respects  J  T         O  L    •/ 

boiijiiit  and  action  to  the  parties.  The  note  he  gives  to  the  seller 
is  called  the  sold  note,  that  which  he  gives  to  the  buyer 
is  called  tlie  hougiit  note.  To  adopt  Mr.  Benjamin's  classifica- 
tion,^ there  are  four  varieties  of  these  notes  used  in  practice. 
"  The  first  is  where  on  the  face  of  the  note  the  broker  professes 
to  act  for  both  the  parties  whose  names  are  disclosed  in  tlue  note. 
The  sold  note,  then,  in  substance,  says,  '  Sold  for  A.  B.  to  C. 
D.,'  and  sets  out  the  terms  of  the  bargain  ;  the  bought  note  be- 
gins, '-  Bought  for  C.  D.  of  A.  B.,'  or  equivalent  language,  and 
sets  out  the  same  terms  as  the  sold  note,  and  both  are  signed  by 
the  broker.  The  seco7id  form  is  where  the  broker  does  not  dis- 
close in  the  bought  note  the  name  of  the  vendor,  nor  in  the  sold 
note  the  name  of  the  purchaser,  but  still  shows  that  he  is  acting 
as  broker,  not  principal.  The  form,  then,  is  simply  '  Bought  for 
O.  D.,'  and  '  Sold  for  A.  B.'  The  third  form  is  where  the  bro- 
ker, on  the  face  of  the  note,  appears  to  be  the  principal,  though 
he  is  really  only  an  agent.  Instead  of  giving  to  the  buyer  a 
note,  '  Bought  for  you  by  me,'  he  gives  it  in  this  form :  '  Sold  to 
you  by  me.'  By  so  doing  he  assumes  the  obligation  of  a  prin- 
cipal, and  cannot  escape  responsibility  by  parol  proof  that  he 
was  acting  only  as  broker  for  another,  although  the  party  to 
whom  he  gives  such  a  note  is  at  liberty  to  show  there  was  an 
unnamed  principal,  and  to  make  this  principal  responsible.^  The 
fourth  form  referred  to  by  Mr.  Benjamin  is  where  the  broker 
professes  to  sign  as  a  broker,  but  is  really  a  principal,^  in  which 
case  his  signature  does  not  bind  the  other  party,  and  he  cannot 
sue  upon  the  contract,  except  upon  proof  of  usage  conferring  on 
him  this  right.     Supposing,  then,  that  we  have  before  us  both 

1  Benj.  on  Sales,  §  276.  send,   24  N.   Y.   57.     See  Merritt  v. 

2  Sec  AVhart.  on  Agency,    §    719;     Clason,  12  Johns.   R.    102;  Clason  v. 
notes  to   Thomson   v.    Davenport,    2     Bailey,  14  Johns.  R.  484. 

Smith's  Leading  Cas.  349;  Higgins  v.  ^  See,  as  illustrations,   Sharman   v. 

Senior,  8  M.  &  W.  834;  Wilfiams  v.  Brandt,  L.  R.  6  Q.  B.  720;  and  Mol- 

Bacon,  2  Gray,  387;  Fuller  v.  Hooper,  lett  v.  Robinson,  L.  R.  s'C.   P.  648  ; 

3  Gray,  341  ;  Eastern  R.  R.  v.  Bene-  7  C.  P.  84. 
diet,   5   Gray,   561;  Dykers  v.  Town- 

90 


CHAP  III.]  PRIMARINESS   AS    TO   DOCUMENTS.  [§  76. 

the  broker's  book  of  original  entries,  and  the  bought  and  sold 
notes,  which  of  these  is  the  primary  evidence  of  the  contract  be- 
tween buyer  and  seller?  Much  conflict  exists  in  tlie  English 
courts  on  this  point;  ^  but  the  better  opinion  is  that  the  signed 
entry  made  by  the  broker  in  his  book,  he  making  the  entry  as 
agent  of  both  parties,  is  the  primary  contract,  and  when  it  exists, 
the  bought  and  sold  notes  are  secondary,  being  transcripts  of  the 
entry  in  the  book.^  If  there  be  no  entry  (or,  it  has  been  inti- 
mated, only  an  unsigned  entry),  then  the  bought  and  sold  notes 
are  primary.^  It  is,  of  course,  plain  that  if  no  notes  have  been 
transmitted  to  the  principals,  the  broker's  entry  is  primary,  and 
may  be  sued  on.^  When  the  bought  and  sold  notes  substantially 
differ,  then,  it  is  held,  there  is  no  binding  contract.^  If,  how- 
ever, the  bouglit  and  sold  notes  are  held  to  be  primary,  or  if 
they  are  introduced  as  secondary,  on  the  non-production  of  the 
broker's  book,  it  is  enough  for  the  party  suing  to  produce  the 
note  in  his  possession,  and  to  show  that  the  broker  was  employed 
as  agent  by  the  party  sued.^ 

§  76.  The  rule  before  us  has  been  frequently  applied  to  tele- 
grams.    What  is  said    of   letters  applies    to  telegram    Originals  of 
contracts.     The  original  message  is  the  primary  evi-    nfi^Xbe^^ 
dence  ;  and  c)nly  on  proof  excusing  its  production  can    produced, 
its  contents  be  shown  by  parol.''    It  has,  however,  been  ruled  that 

1  See  Taylor's  Ev.  §390;  Wharton  *  Townend   v.    Drakeford,  1   C  & 

on  Agency,  §  720.  Kir.  20;  Pitts  v.  Beckett,  13  M.  &  W. 

'^  To  this  effect,  sec  Benj.  on  Sales,  746;  llichey  v.  Garvey,   10  Ir.  L.  R. 

2d  ed.   276-294.     And  see   Thornton  544. 

V.  Charles,   9  M.  &  W.  802  ;   Grant  v.  5  Cowie  v.  Remfry,  5  Moo.  P.  C.  R. 

Fletcher,  5  B.  &   C.  436;  Henderson  237;  though  see  Heyworth  v.  Knight, 

V.  Barnewall,  1  Y.  &  J.  389;  Ileyman  17  C.  B.  (N.  S.)  310. 

u.  Nealc,  2  Camp.  337;  Sievewright  w.  "  Hawes  v.  Forster,  1    M.  &  Rob. 

Archibald,  17    Q.   B.   115,  overruling  368.     As  to  degree  in  which  variance 

Thornton  v.  Meux,  1  M.  &  M.  43.  between  bought  and  sold  notes  will  be 

8  See  Sievewright  v.  Archibald,  17  fatal,  sec  Cowie  v.  Remfry,  5  Moo.  P. 

Q.  B.  11.-);  Parton  v.  Qrofts,  16  C.  B.  C.  R.  232;  Thornton   v.   Kenipster,   5 

(N.    S.)    11.      See,   however,  as  con-  Taunt.  786;    Townend   i\  Drakeford, 

testing  the  above,  Goom   v.  Aflalo,  6  1  C.  &  K.  20;  Gregson  v.  Ruch,  4  Q. 

B.  &  C.  117;  Thornton   v.  Kenipster,  B.  737;  Kenipson  v.  Boyle,  3  II.  &  C. 

5  Taunt.  786;  Durrell  v.  Evans,   1  II.  763;   Sievewright  u.  Archibald,  17  Q. 

6  C.  174,  overruling  .S.  C,  under  name  B.  103.  And  see  infra,  §  068,  as  to 
Darrell  v.  Evans,  6  II.  &  N.  660.  See,  admission  of  evidence  to  control  brok- 
also,  Parton  v.   Crofts,    16   C.  B.   (N.  er's  memoranda. 

S.)  1 1 .  ■'  Scott  &  Jarn.  on  Tel.  §  340  ;  IIow- 

91 


§  76.]  THE   LAW    OF   EVIDENCE.  [BOOK  I. 

if  the  telegraph  company  is  authorized  by  the  sender  to  act  for 
him  (which  is  inferred  from  his  sending  a  message  over  its  lines), 
the  message  delivered  is  primary  evidence  as  against  the  sender ;  ^ 
but  if  the  receiver  is  the  employer,  then  the  original  message 
given  by  the  sender  to  the  operator  must  be  produced.^  A  tele- 
graphic answer  to  a  letter  may,  with  such  letter,  be  used  to  prove 
a  contract.^  In  such  case,  the  telegram  as  delivered  and  acted 
on  by  the  receiver  becomes  primary  evidence  of  the  contract.* 
When  there  has  been  no  previous  communications  between  the 
parties,  a  telegram  sent  for  the  purpose  of  settling  a  particular 
detail  is  evidence  only  against  the  sender  as  to  the  particular 
point.^  Proof  that  the  message  was  sent  over  the  wires  ad- 
dressed to  a  particular  person  at  a  particular  place,  he  being 
shown  to  be  at  the  time  resident  at  such  a  place,  may  present 
a  primd  facie  case  of  the  reception  of  such  telegram  by  the 
sendee.^  But  the  sending  of  a  telegram  addressed  to  a  person  at 
a  given  place,  and  the  receipt  of  an  answer  purporting  to  be  from 
him  in  due  course,  is  not  admissible  to  prove  that  he  was  in  the 
place  at  the  time  in  question.'^  It  is  scarcely  necessary  to  add 
that  when  the  original  message  is  produced  against  a  party,  it 
must  be  duly  proved.^ 

ley  V.  Wliipple,  48  N.  H.  488;  Dur-  parties  as  part  of   a  contract,  is  but 

kee   V.  R.  R.   29  Vt.    127;    Com.   v.  secondary   evidence    as    against    the 

Jeffries,  7  Allen,  548 ;  Lewis  i'.  Ha-  sender,  is  well  shown  in  the  following 

vens,  40  Conn.  363 ;  Benford  v.  San-  opinion  :  — 

ner,  40  Penn.  St.  9;  West.  Un.  Tel.         "In    Connecticut    v.    Bradish,    14 

Co.  V.  Hopkins,  49  Ind.223;  Matteson  Mass.  296,  a  letter  was  admitted,  as 

V.  Noyes,   25    III.    591  ;    Williams   v.  evidence  against  a  party,  where  there 

Brickell,  37  Miss.  682  ;  Richie  V.Bass,  was    no  evidence  of  the  handwriting 

15  La.  An.  668.  except  the  testimony  of  a  witness  that 

^  Morgan  v.  People,  59  111.  58.  it  was  the  same  he  had  received  in  re- 

2  Diirkee  v.  R.  R.  29  Vt.  127.  ply  to  a  letter  which  he  had  addressed 

*  Taylor  v.  Robt.  Campbell,  20  Mo.  to  the  same  party  ;   and  this  ruling 
254.    Infra,  §  618.  was  sustained.     The  same  doctrine  is 

*  Dunning  v.  Roberts,  35  Barb.  463;  held  in  1  Gree»l.  Ev.  §  578,  and  cases 
Trevor  v.  Wood,  36  N.  Y.  307.  cited  ;  Johnson  v.  Daverne,  19  Johns. 

5  Beach  v.  R.  R.  37  N.  Y.  457.  134;  Chaffee  v.  Taylor,  3  Allen,  598. 

^  Com.   V.  Jefferies,  7    Allen,  548.  "  Now  it  is  claimed  that,  as  in  case 

See  infra,  §  1323-8-9.  of  a  letter,  so  in  case  of  a  telegraphic 

'  Howley  i>.  Whipple,  48  N.  H.  487.  dispatch,  the  person  who    answers  a 

8  Lewis  V.  Havens,  40  Conn.  363.  dispatch  is  so  generally  and  uniformly 

That   the   telegram  itself  as  deliv-  the  person  to  whom  the  communica- 

ered,  and  before  it  is  adopted  by  the  tion  was  addressed,   that   it   may  be 

92 


CHAP.  III.] 


PRIMAKINESS   AS    TO   DOCUMENTS. 


[§  77. 


II.  EXCEPTIONS  TO  RULE. 

§  77.  While  parol  proof  of  a  producible  written  instrument 
cannot  be  received,  yet  where  the  parol  evidence  is  as    Exceptions 
near  to  the  thing  testified  to  as  the  written,  then  each    roi' evii'^" 
is  primary.i     Thus  the  date  of  A.'s  birth  is  registered    ^^P*^^  '^  ^^ 

^     ,  .  .  primary  as 

by  one  of  his  parents ;  this  is  primary  evidence.     But   written, 
safely  acted  upon,  and  that  it  is  thus     sender  of  the  message  and  the  corn- 


acted  upon  in  all  the  business  arrange- 
ments of  the  country. 

"  But  there  is  a  difference  in  prin- 
ciple between  the  two  cases,  —  the  let- 
ter received  in  reply  to  a^written  com- 
munication, and  the  dispatch  received 


pany,  the  original  message  is  the  one 
left  at  the  office  by  the  party  sendinor 
it ;  but  where  a  man  sends  a  propo- 
sition to  another  man,  by  telegraph, 
and  gets  a  reply  accepting  the  offer, 
the  original  message,  so  far  as  bindin"- 


in  reply  to   the  same  communication     the  acceptor  is  concei-ned,  is  the  copy 


sent  by  telegraph.  Telegraphic  mes- 
sages are  instruments  of  evidence  for 
various  purposes,  and  are  governed 
by  the  same  general  rules  which  are 
applied  to  other  Avritings.  If  there  be 
any  difference  it  results  from  the  fact 
that  messages  are  first  written  by  the 
sender,  and  are  again  written  by  the 


delivered  to  him  at  the  other  end. 
The  message,  as  communicated  to  the 
acceptor,  and  his  reply,  as  delivered 
to  the  operator  to  be  returned,  are 
what  would  govern  in  construing  the 
contract,  provided  both  parties  volun- 
tarily, and  of  their  own  accord,  sent 
their  messages  by  the  telegraph,  and 


operator  at  the  other  end  of  the  line,     thus    adopted   the   company  as  their 
thus  causing  the  inquiry  as  to  which     agent. 


is  original.  The  original  message, 
whatever  it  may  be,  must  be  produced, 
it  being  the  best  evidence ;  and,  in 
case  of  its  loss,  or  of  inability  to  pro- 
duce   it  from    any   other   cause,    the 


"In  Matteson  v.  Noyes,  25  111.  Rep. 
591,  Walker,  J.,  in  delivering  the 
opinion  of  the  court,  says  :  '  On  the 
trial  below,  appellee  oilered,  and  the 
court  admitted,  in  evidence  what  pur- 


next  best  evidence  the  nature  of  the     ported  to  be  a  telegram  irom  the  ap- 


case  will  admit  of  must  be  furnished. 
if  there  was  a  copy  of  the  message 
existing  it  should  be  produced;  if  not, 
then  the  contents  of  the  message 
should  be  shown  by  parol  testimony, 


pellant  to  Loren  Darling.  There  was 
no  evidence  that  it  was  the  original, 
or  that  the  original  had  been  lost  or 
destroyed,  or  could  not  be  produced, 
or  that  the  paper  offered  was  a  copy. 


Scott  &  Jarnagan  on  Telegraphs,  §§  It  was  simply  offered  and  admitted  as 

340,   341.     Many  cases   are  cited   in  the  dispatch  which  was  received   by 

the  above  work,  from  which  it  is  held,  the  witness  from  the  tolegrafili  oHice, 

that  in  all  controversies   between   the  and   as   primary  evidence.      It  is  an 

1  Agricult.    Cat.    Ins.   Co.  v.  Fitz-  6  Ga.  260;  Planters'  Bk.  v.  Borland, 

gerald,16  Q.  B.  435;  Tucker  r.  Welsh,  5  Ala.  531;  Sparks  r.  Kawls,  17   Ala. 

17  Mass.   168;    McFadden  v.   Kings-  211;   O'Neal  v.  Brown,  20  Ala.  510; 

bury,   11   Wend.  667;  Prater  v.  Fra-  Duffie   v.  Phillips,  31   Ala.   571  ;    St. 

zier,  11  Ark.  249;  Thompson  v.  Mapp,  Louis  11.  R.  v.  Eakins,  30  Iowa,  279. 

93 


77.] 


THE  LAW   OF   EVIDENCE. 


[book  I. 


the  testimony  of  a  relative  cognizant  of  A.'s  birth  is  also  primary- 
evidence  of  its  date.^  Marriage,  as  will  hereafter  be  abundantly 
shown,  may  be  proved  by  parol,  though  there  be  a  written  con- 
tract and  a  registry .^  A  militia  company  may  be  known  by  sev- 
eral names,  and  parol  evidence  to  show  this  may  be  received, 


elementary  principle  that  a  resort 
must  always  be  had  to  the  best  evi- 
dence in  the  power  of  the  party  by 
•which  the  fiict  is  capable  of  proof,  and 
it  is  an  inflexible  rule  that,  if  it  is 
in  writing,  the  original  must  be  pro- 
duced, unless  it  be  shown  that  it  is 
destroyed,  or  not  within  the  power  of 
,the  party  to  produce  it,  before  sec- 
ondai-y  evidence  can  be  received  of 
its  contents.  And  before  a  copy  of  a 
written  instrument  can  be  admitted, 
a  suflicient  foundation  must  be  laid  by 
preliminary  proof  of  destruction  or  ab- 
sence. In  this  case  no  such  proof  was 
made  to  justify  the  reception  of  this 
copy  in  evidence.' 

"  There  is  also  authority  cited  in 
Scott  &  Jarnagan,  supra,  from  the  18th 
Upper  Canada  Rep.  (Q.  B.)  60,  King- 
horn  V.  The  Montreal  Telegraph  Co., 
where  Robinson,  C.  J.,  in  delivering 
the  opinion  of  the  court,  says :  '  We 
must  look,  I  think,  in  the  case  of  each 
communication,  at  the  papers  deliv- 
ered by  the  party  who  sent  the  mes- 
sage, not  at  the  transcript  of  the  mes- 
sage taken  through  the  wire  at  the 
other  end  of  the  line,  with  all  the 
chances  of  mistake  in  apprehending 
and  writing  the  signals,  and  in  trans- 
scribing  for  delivery.' 

"  These  cases  seem  fully  to  apply  to 
this  case.  There  is  a  class  of  cases 
in  which  contracts  have  been  made  by 
telegrams,  where,  for  the  purpose  of 
showing  what  the  contract  was,  the 
message  that  was  delivered  to  the  per- 
son addressed,  and  the  answer  of  ac- 
ceptance as  delivered  for  transmission, 
94 


were  considered  the  originals  ;  such 
are  Dunning  &  Smith  v.  Roberts,  35 
Barb.  463;  Trevor  &  Colgate  v.  Wood, 
36  N.  Y.  307;  and  Durkee  v.  Railroad 
Co.  29  Vt.  127,  in  which  last  case, 
Redfield,  J.,  in  delivering  the  opinion 
of  the  court,  says  :  '  In  regard  to  the 
particular  end  of  the  line  where  in- 
quiry is  first  to  be  made,  it  depends 
upon  which  party  is  responsible  for 
the  transmission  across  the  line,  or, 
in  other  words,  whose  agent  the  tele- 
graph company  is.  The  first  com- 
munication in  the  transaction,  if  it  is 
all  negotiated  across  the  wires,  will 
only  be  effective  in  the  form  in  which 
it  reaches  its  destination.  In  such 
case  inquiry  should  be  made  for  the 
dispatch  delivered.  In  default  of  that, 
its  contents  may  be  shown  by  the  next 
best  proof.' 

"  But  these  cases  do  not  change  or 
affect  the  doctrine  so  far  as  it  is  ap- 
plicable to  this  case,  because  here  the 
original  answer  delivered  by  Gould 
must  be  the  one  to  be  regarded  as  the 
original,  so  far  as  proof  of  handwriting 
is  concerned,  no  matter  in  what  form 
the  message  was  received  at  the  other 
end."  Sargent,  J.,  Howley  v.  Whipple, 
48  N.  H.  488-90. 

1  Evans  v.  Morgan,  2  C.  &  J.  453; 
R.  V.  Manwaring,  Dear.  &  B.  132; 
Morris  v.  Miller,  4  Burr.  205  7  ;  Suss. 
Peerage,  11  CI.  &  F.  85;  Carskad- 
den  V.  Poorman,  10  Watts,  82;  Beeler 
V.  Young,  3  Bibb,  520;  Com.  v.  Nor- 
cross,  9  Mass.  492. 

2  Infra,  §§  83-4.  See  Limerick  v. 
Limerick,  4  Sw.  &  Tr.  252. 


CHAP.  III.] 


PRIMARINESS   AS   TO   DOCUMENTS. 


[§  77. 


though  the  names  may  be  noted  in  the  records  of  the  company.^ 
Proof,  again,  of  what  is  done  at  a  legislative  or  corporate  meet- 
ing is  not  excluded  by  the  fact  that  the  meeting  keeps  minutes 
which  may  be  evidence.^  Payment,  also,  of  money  to  a  third 
party,  or  for  taxes,  can  be  proved  without  accounting  for  the 
written  receipt ;  ^  and  so  may  the  admission  of  a  debt,  though 
coincident  with  the  giving  a  note,^  and  so  may  an  oral  notice 
sent  at  the  time  of  a  written  demand.^  So  the  fact  that  trains 
on  a  railroad  are  due  at  a  certain  point  on  a  certain  time  may  be 
proved  by  parol  as  well  as  by  the  time  table ;  ^  so  the  fact  of  the 
posting  of  town  ordinances  may  be  proved  by  parol."     In  suits 

1  Emerson  v.  Lakin,  23  Me.  384.  Blcncowe,  3  M.  &  Gr.  119,  where  the 

2  Miles  V.  Bou'^h,  3  Q.  B.  848  ;  court  held  that  written  proposals, 
Inglis  c.  K.  R.  1  Macqueen,  S.  C.  112.  made  pending  a  negotiation  for  a  tcn- 

3  Rambert  v.  Cohen,  4  Esp.  213;  ancy,  might  be  admitted  without  a 
Jacob  V.  Lindsay,  1  East,  460 ;  Keene  stamp,  as  proving  one  step  in  the  evi- 
V.    Meade,    3    Peters,    7 ;    Dennett   v.  dence   of    the    contract  ;   and    when, 


Crocker,  8  Me.  239;  Kingsbury  v. 
Moses,  45  N.  H.  222;  Berry  v.  Berry, 
17  N.  J.  L.  440;  Leatlierbury  v.  Ben- 
nett, 4  Har.  &  M.  392  ;  Ford  v.  Smith, 
5  Cal.  314;  Hinchman  v.  Whetstone, 
23  Jll.  185  ;  Adams  r;  Bcale,  19  Iowa, 
61  ;  Wolf  V.  Foster,  13  Kan.  116. 
Accordingly  the  payment  may  be  sub- 
stantiated either  by  producing  the 
creditor's  receipt  and  proving  his  sig- 
nature, or  by  the  oral  deposition  of  the 
debtor.  Tiiougli  see  McGregor  v.  Bug- 
bee,  15  Vt.  734. 


upon  a  like  occasion,  a  memorandum 
of  agreement  was  drawn  up  by  the 
landlord's  bailiff,  the  terms  of  which 
were  read  over,  and  assented  to  by 
the  tenant,  who  agreed  to  bring  a 
surety  and  sign  the  agreement  on  a 
future  day,  but  omitted  to  do  so. 
Doe  V.  Cartwright,  3  B.  &  A.  326. 
See  Hawkins  v.  Warre,  3  B.  &  C. 
690  ;  5  D.  &  R.  512,  S.  C.  And  where, 
in  order  to  avoid  mistakes,  the  terms 
upon  which  a  house  was  let  were,  at 
the  time  ofletting,  reduced  to  writing 


Singleton  v.  Barrett,  2  C.  &  J.  368.     by  the   lessor's  agent,  and  signed  by 


5  Smith  V.  Young,  1  Camp.  439, 

«  Chicago  R.  R.  v.  George,  19  111. 
510. 

T  Teft  V.  Size,  10  111.  432. 

This  exception  has  been  extended 
(Taylor's  Ev.  §  ;.77)  to  cases  where, 
at  the  time  of  letting  some  premises 


the  wife  of  the  lessee,  in  order  to 
bind  him  ;  but  the  lessee  himself  was 
not  present,  and  did  not  appear  to 
have  constituted  the  wife  as  liis  agent, 
or  to  have  recognized  her  act,  further 
than  by  entering  upon  and  occui)ying 
the    i)remises  ;     R.    r.    St.    Martin'.s, 


to   the   defendant,  the   plaintiff    had     Leicester,  2  A.  &  E.  210;  4  N.  &  M 


read  the  terms  from  pencil  minutes, 
and  the  defendant  had  acquiesced  in 
these  terms,  but  had  not  signed  the 
minutes.  Trewhitt  v.  Lambert,  10 
A.  &  E.  470;  3  P.  &  D.  67G,  S.  C. 
See  Drant  v.  Brown,  3  B.  &  C.  605; 
5  D.  &  R.  582,  5.  C. ;  and  Bethell  c. 


202,  S.  C.  ;  and  where  lands  were  let 
by  auction,  and  a  written  jjaper  was 
delivered  to  the  bidder  b}  tiie  auc- 
tioneer, containing  the  terms  of  the 
letting,  but  this  paper  was  never 
signed  either  by  the  auctioneer  or  by 
tlie    parties  ;    Ramsbottoin    v.     Tun- 

95 


§  77.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

also,  of  trover,  for  the  conversion  of  a  document,  tlie  document 
may  be  generally  proved  by  parol  description. ^  So  it  lias  been 
held  that  the  inscription  on  a  trunk  tag  can  be  proved  without 
producing  the  tag  ;  ^  that  a  highway  can  be  proved  to  be  such 
without  producing  the  deeds  or  record  establishing  it ;  ^  that  the 
nature  of  clothes  can  be  proved  without  producing  the  clothes ;  ^ 
that  the  fact  that  a  witness  has  been  in  prison  can  be  proved 
without  producing  the  record  of  conviction.^  Again,  where  the 
occupation  of  land  is  the  point  at  issue,  this  fact  may  as  well  be 
shown  by  calling  a  witness  to  prove  such  occupation  as  by  produc- 
ing the  lease.^  Thus  in  an  English  case,"  to  prove  a  subsequent 
settlement,  a  pauper  was  asked  whether  he  had  not  occupied  and 
paid  rent  for  a  tenement.  The  opposite  counsel  interposed,  and 
asked  if  he  had  held  under  a  written  contract.  It  appeared  that 
he  had,  and  it  was  then  submitted  that  the  writing  must  be  pro- 
duced, and  that  the  original  question  could  not  be  answered. 
But  the  court  held  that  it  might.  Bayley,  J.,  said :  "  The 
general  rule  is,  that  the  contents  of  a  written  instrument  cannot 
be  proved  without  producing  it.  But  although  there  may  be  a 
written  instrument  between  a  landlord  and  tenant,  defining  the 
terms  of  the  tenancy,  the  fact  of  tenancy  may  be  proved  by 
parol  without  proving  the  terms  of  it."  And  Littledale,  J.  said : 
"  Payment  of  rent  as  rent  is  evidence  of  tenancy,  and  may  be 
proved  without  producing  the  written  instrument."  ^  The  rea- 
son for  these  exceptions  is  that  when  parties  agree  that  a  fact 
should  be  evidenced  by  oral  as  well  as  by  written  proof ;  or  when, 
from  the  nature  of  the  case,  the  proof  must  rest  primarily  in  the 
recollection  of  the  parties,  which  the  written  memoranda  are  ad- 
bridge,  2  M.  &  Sel.  434.  See  Rams-  2  Qqj^^.  v.  Morrell,  99  Mass.  542. 
bottom  V.  Mortley,  2  M.  &  Sel.  445,  3  Woburn  v.  Hensliaw,  101  Mass. 
■where,    on   the   occasion  of   hiring  a     193. 

servant,  the  master  and  servant  went         *  Com.  v.  Pope,  103  Mass.  440. 
to  the  chief  constable's  clerk,  who  in         ^  gg^  infra,  §  541. 
their  presence,  and  by  their  direction,         ^  See  Spiers  r.  Willison,  4  Cranch, 
took  down  in  writing  the  terms  of  the     398;  Hay  v.   Moorhouse,    6    Bing.  N. 
hiring,  but  neither  party   signed   the     C.  52. 

paper,  nor  did  it  appear  to  have  been         ''  E,.  r.  Kingston  upon  Hull,  7  B.  & 
read  to  them,  parol  evidence  was  re-     C.  611;  1  M.  &  R.  444. 
ceived.  s  ggg,  also,  Twyman  v.  Knowles,  13 

1  Jolley  V.   Taylor,   1    Camp.    143;     C.  B.  222. 
Scott  V.  Jones,  4  Taunt.  865. 

96 


CPIAP.  III.]  PRIMARINESS   AS   TO   DOCUMENTS.  [§  78. 

missible  only  to  refresh,  then  the  existence  of  the  written  memo- 
randa (there  being  no  statute  making  it  the  exckisive  method  of 
proof)  does  not  exckide  the  oral  proof. 

§  78.  It  is  also  obvious  that  in  most  questions  of  genuineness 
and  identity  of  documents,  parol  evidence  must  be  re- 

,  .     ^  .  .  So  when 

ceived  to  prove  such  genuineness  and  identity.  Except  writing 
m  case  or  certain  selr-proving  documents,  the  genuine-  poses  parol 
ness  of  a  document  must  be  proved  by  witnesses  before  ^™°  " 
it  can  be  let  in  ;  and,  as  is  elsewhere  seen,  where  the  suit  is  tort 
for  conversion,  the  document  may  be  described  by  parol  without 
notice  to  produce.^  So  it  may  be  proved  by  parol  (there  being 
nothing  in  the  certificate  to  such  effect),  that  a  person  taking  an 
acknowledgment  was  a  justice  of  the  peace,  or  other  proper  offi- 
cer ;  2  and  that  certain  persons  were  partners,  without  producing 
the  decd.^  So,  as  is  elsewhere  shown  more  fully,  the  fact  of 
agency  may  be  proved  primd  facie  by  recognition  of  the  princi- 
pal.* Nor,  as  to  a  parol  agreement  collateral  to  a  written,  does 
the  rule  apply.^  It  must  at  the  same  time  be  remembered  that 
the  exceptions  just  noted  are  confined  to  cases  wdiere  the  parol 
evidence  is  evidential  and  not  dispositive.^  If  it  go  to  the  essence 
and  substance  of  a  contract,  which  contract  the  suit  is  brought  to 
enforce,  then  the  writing  must  be  produced ;  as  where  a  question 
of  title  is  involved,"  or  where  the  terms  of  a  tenancy  which  is 
sued  on  are  material.^ 


^  Scott  V.  Jones,  4  Taunt.  865 
Read  v.  Gamble,  10  A.  &  E.  597 
Bucher  v.  Jarratt,    3  B.  &  P.    145 


Doe  V.  Cartwright,  3  B.  &  A.  326.   In- 
fra, §  1026. 

«  See   11.  V.  Castle  Morton,  3  B.  & 


How  V.  Hall,  14  East,  275;  Darby  v.  Aid.  590. 

Ouseley,  1  H.  &  N.  1 ;  Com.  v.  Messin-  ^  Cotterill   v.   Hobby,    4    B.    &    C. 

ger,  1  Binn.  274;  McLean  v.  Hertzog,  465. 

6   S.  &  R.   154  ;   McGinnis  v.   State,  8  i>.  j,.  Merthyr  Tidvil,  1  B.  &  Ad. 

24   Ind.    500;  Ross  u.  Bruce,   1   Day,  31.     So,  in  tlie  case  of  Yorke  r.  Smith, 

100.  21  L.  J.  Q.  B.  53,  mIutc  a  bill  of  sale 

2  Rlioades   v.  Selin,  4  Wash.    715  ;  was  inadmissible  for  want  of  a  stamp, 

Bank  U.  S.  v.  Benning,  4  Cranch  C.  C.  it  was  held  that  oral  evidence  of  the 

81;  Shultz  V.  Moore,  1  McLean,  520;  fact  that  there  had  been  a  sale  was 

State  V.  McNally,  34  Me.  210.  Avrongly  admitted.     But,  as  we   have 

^  Alderson    v.    Clay,    1    Stark.    R.  seen,  if  a  contract  be   established  by 

405.  oral  evidence,   it   is   lor   the    adverse 

*  Infra,  §§  1315-18.  party  to  prove  that  it  was  in  writing. 

5  Reid  u.  Batte,  M.  &]\1.413;  Rams-  In  R.  v.  Rawden,  8  B.  &  C.  710.  Bay- 
bottom  V.  Tunbridge,   2  M.  &  S.  434;  ley,  J.,  said:  "  There  can  be  no  doubt 

VOL.  I.  97 


§  80.]  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

§  79.  Another  important  exception,  based  upon  the   admis- 

Where  the  ^ions    of    the   party    charged,    will   be    hereafter   dis- 

^^^*y  ,  cussed.i    It  is  enough  for  the  present  to  say  that  a  party 

admits  tiie  may,  by  admitting  the  contents  of  a  document,  under 

contents  of  "^  .,.      .        .      ^         ,.  ,  .  . 

the  docu-      certain  limitations,  relieve  his  opponent  from  its  pro- 

ment.  ,      , . 

auction. 

§  80.  Cases  may  occasionally  occur  in  which  it  is  desirable  to 

obtain  information  which  is  scattered   through  a  vast 

of  voiiinii-    number  of  public  documents,  the  originals  of  which  it 

mentsmay    would  be  highly  impolitic  as  well  as  inconvenient  to 

^^J^'  remove    from   their  archives.     In  such  cases  it  would 

ceived. 

be  a  perversion  of  justice  not  to  admit  sworn  abstracts, 
or  summaries  of  such  documents,  made  by  their  jaroper  custodians, 
in  all  cases  where  such  summaries  are  based  on  and  capable  of 
being  tested  by  exact  calculation.  In  such  cases  they  may  be 
received.^  This  liberty,  however,  is  not  allowed  as  to  bank 
books,  which  must  at  common  law  be  produced  in  court  or  their 
absence  accounted  for,^  nor  as  to  the  books  of  a  railroad  company.* 
Nor  can  the  certificate  of  an  officer  having  charge  of  public  rec- 
ords, that  a  certain  fact  appears  by  the  records,  be  received.  The 
records  themselves  must  be  proved  or  exemplified.^  So  where  a 
mass  of  private  documents  to  be  inquired  into  is  so  great  that 
they  cannot  possibly  be  mastered  in  court,  then,  whenever  a 
result  can  be  ascertained  by  calculation,  the  result  of  such  cal- 
culation, subject  to  be  tested  by  other  expert  witnesses,  is  admis- 
sible.^ And  where  bills  of  exchange  have  been,  by  certain  par- 
ties, invariably  drawn  in  the  same  way,  this  fact  may  be  proved 
by  one  of  their  clerks  without  producing  the  bills.''     It  is  other- 

that  a  party  may,  by  keeping  out  of  v.  Kershaw,  1  De  G.  &  Sm.  264,  ruling 

view  a  written  instrument,  make  out  that  to  admissibility  of  the  abstract  it 

by  parol  testimony  a  prima  facie  case  is  necessai-y  that  the  books  should  be 

of  tenancy,  and  that  it  then  lies  on  the  ready  to  be  produced  if  required, 
opposite  party  to  rebut  the  ^r/ma /aae        3  Ritchie  v.  Kinney,  46  Mo.  298. 
case   so   made   out."      Powell's    Evi-        «  McCombs  v.  R.  R.  67  N.  C.  193. 
dence,  4th  ed.  63.  5  Wayland  v.  Ware,  109  Mass.  248 ; 

1  Infra,  §  1 091.  but  see  Weidman  v.  Kohr,  4  Serg.  &  R. 

2  Roberts  v.   Doxen,  Peake's   Cas.  174. 

83;  Meyer  i'.   Sefton,   2    Stark.  276;  «  Stephen's  Ev.  p.  70,  citing  Roberts 

Henderson   v.  Hackney,  16   Ga.  521;  v.  Doxen,   Peake,  83;  Meyer  v.  Sef- 

Burton  v.  Driggs,  20  Wall.  133  ;  cited  ton,  2  Stark.  276. 

infra,  §§  82,  126,  177  a.     See  Johnson  ''  Spencer  v.  Billino-,  3  Camp.  310. 
98 


CHAP.  III.] 


PRIMARINESS   AS    TO   DOCUMENTS. 


[§  82. 


wise,  however,  as  to  matters  not  the  subject  of  calcuhition,  or  of 
precise  statement. ^ 

§  81.  An  instrument  may  be  of  so  evanescent  and  transient  a 
character  that  the  incapacity  of  the  party  to  produce  it    g^^  ^ 
may  be  assumed  without  proof.     In  such  case  secondary   P^'o'  ^vi- 

•^  _  i  _  _  ''      dence  of 

evidence  of  its  contents  may  be  given  without  pro-  ihings 
ducing  it,  or  giving  evidence  explanatory  of  its  non-  and  unpro- 
production.  Tlius,  without  production,  or  explanation 
of  non-production,  witnesses  have  been  permitted  to  give  parol 
evidence  of  the  inscriptions  on  banners  exhibited  at  public  meet- 
ings,2  of  the  Avi-iting,  as  we  have  seen  on  a  trunk  tag,  at  least 
for  purposes  of  identification  ;  ^  and  of  the  marks  on  clothes  and 
other  articles  of  personal  property.^ 

§  82.  ]\Ionuments,  tomb-stones,  and  other  unmovable  struct- 
ures, may  contain  inscriptions  which  it  is  important  to    And  so  as 
put  in  evidence.     From  the  nature  of  the  case  such  in-   ^vhicU  can- 
scriptions  may  be  j)roved  either  by  photographs,  or  by    "°oi,,^i,t 
copies  duly  proved.^     The  same  reasoning  applies  to   '"''^  '^°"'"'- 

"  The  general  rule  is  most  frequently 
applied  to  writings,  where  proof  is  of- 
fered of  their  contents.  The  writing 
itself  must  be  produced.      But  there 


1  Topham  v.  McGregor,  1  C.  &  Kir. 
320.     See  infra,  §§  126,  50G-.'J15. 

2  R.  V.  Hunt,  3  B.  &  Aid.  56G  ;  Sher- 
idan's case,  31  How.  St.  Tr.  679;  R. 
V.  O'Connell,  Arm.  &  T.  235. 

8  Com.  V.  Morrell,  99  Mass.  542. 
"  The  law  generally  requires  the  pro- 
duction of  the  highest  evidence  of 
which  a  thing  is  capable,  and  evi- 
dence is  to  be  excluded  which  sup- 
poses still  higher  evidence  behind  in 
the  possession  or  power  of  the  party. 
But  the  rule  is  far  from  being  univer- 
sal. For  example,  it  does  not  recpiire 
that  a  supposed  writer  shall  be  called 
to  prove  Jiis  own  handwriting,  or  that 
a  person  whose  identity  is  to  be  proved 
shall  be  produced  in  court.  The  same 
is  true  in  respect  to  an  animal  or  any 
other  object  the  identity  of  which  is 
to  be  proved. 


are  many  exceptions  as  to  wrUing. 
An  inscription  on  a  banner  or  flag 
carried  about  by  the  leaders  of  a  riot 
may  be  proved  orally.  The  King  v. 
Hunt,  3  B.  &  Aid.  566.  Or  a  direc- 
tion contained  on  a  parcel.  Burrell  v. 
North,  2  Car.  &  Kirw.  679.  Or  a  no- 
tice to  an  indorser  of  a  promissory 
note.  Eagle  Bank  i'.  Chapin,  3  Pick. 
180. 

"  In  the  present  case,  the  tag  re- 
ferred to  was  not  a  document,  but  an 
object  to  be  identified.  The  words 
written  upon  it  served  to  identify  it ; 
and  the  court  are  of  opinion  that  oral 
evidence  was  admissible  for  this  pur- 
pose, and  that  it  was  not  necessary  to 


*  Com.  w.  Pope,  103  Mass.  440.  Sec     19  W.    R.   960;  North   Brookfield   v 


Com.  V.  Hills,  10  Cush.  530. 

6  Jones  V.  Tarleton,  9  M.  &  W. 
675  ;  R.  V.  Fursey,  6  C  &  P.  84 ;  Doc  v. 
Cole,  6  C.  &  P.  360;  Haslam  t;.  Cron, 


Warren,  16  Gray,  171.  Sfc  Shrews- 
bury Pcer.age  case,  7  H.  of  L.  Cas.  1, 
16. 

99 


§83.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


Statute 
may  re- 
quire mar- 
riage to  be 
proved  by- 
record. 


marks  on  trees, ^  to  libels  written  on  walls ;  ^  to  placards  posted 
on  walls.3  It  must  appear,  however,  that  the  paper  is  so  attached 
to  the  wall  as  to  be  irremovable.^  The  same  right  has  been 
extended  to  papers  in  a  country  which  forbids  their  removal ;  ^ 
in  which  case  abstracts  of  such  papers  may  be  received.^ 

§  83.  It  is  competent  for  the  law-making  power  to  prescribe 
that  marriage  is  only  to  be  valid  when  solemnized  with 
particular  formalities  ;  and  in  ordinary  cases,  on  the 
principle  locus  7'egit  aetum^  a  marriage  contracted  with- 
out such  formalities  in  a  country  where  such  formalities 
are  exacted,  cannot  extra-territorially  be  held  valid.'^ 
Where  this  is  the  case  the  record  of  the  marriage  must  be  duly 
proved.^  A  marked  qualification  exists,  however,  to  this  rule. 
When  parties  have  lived  together  as  man  and  wife  in  the  United 
States,  it  will  require  very  strong  proof  that  their  marriage  was 
void  for  want  of  formality,  in  the  place  of  solemnization,  to  jus- 
tify with  us  an  adjudication  that  it  is  invalid.^  With  regard  to 
parties  marrying  in  their  domicil  of  origin  with  the  intention  of 
settling  in  the  United  States,  no  American  court  would  venture 
to  pronounce  the  marriage  void  because  the  formalities  prescribed 
by  the  lex  loci  coiitracttis  were  not  followed.^*'     A  fortiori  must 


produce  the  tag.  An  inspection  of 
the  tag,  with  the  written  direction  upon 
it,  might  have  been  more  satisfactory 
to  the  jury  than  an  oral  description  of 
it,  and  therefore  might  be  regarded  as 
stronger  evidence  ;  but  the  strength 
of  evidence  and  the  admissibility  of 
evidence  are  diiferent  matters."  Cliap- 
man,  C.  J.,  CommonweaUh  v.  Morrell, 
99  Mass.  544. 

1  Ibid. 

2  Mortimer  v.  McCallen,  6  M.  & 
W.  6  7. 

3  Bruce  v.  Nicolopulo,  11  Ex.  133. 
See  Bartholomew  v.  Stephens,  8  C.  & 
P.  728. 

*  Jones  y.  Tarleton,  9  M.  &  W. 
675. 

6  Alivon  V.    Furnival,   1    C,  M.   & 

R.  277;  Boyle  v.  Wiseman,  10  Ex.  R. 

647;  Quilter  v.  Jorss,   14   C.   B.   (N. 

S.)   747;  Hyam  v.  Edwards,  1  Dall. 

100 


2;  Am.  Life  Ins.  Co.  v.  Rosenagle, 
7  7  Penn.  St.  507.     Infra,  §  108. 

«  Supra,  §  81. 

■^  See  Whart.  Confl.  of  Laws,  §  127 
et  seq.;  Holmes  v.  Holmes,  1  Abb.  U. 
S.  526. 

8  State  V.  Horn,  43  Vt.  20.  See 
"State  V.  Wallace,  fl  N.  H.  515;  Jack- 
son V.  People,  2  Scam.  232;  Glenn  v. 
Glenn,  47  Ala.  204.     See  infra,  §653. 

9  See  Whart.  Confl.  of  Laws,  §  173 
et  seq, 

^°  On  this  point  the  following  thought- 
ful opinion  sti'ikes  the  true  line  :  "It 
is  not  disputed  that  in  a  case  of 
this  nature  an  actual  marriage  must 
be  proved.  Such  evidence  of  cohab- 
itation and  reputation  as  would  be 
sufficient  in  other  civil  actions,  will 
not  suffice  where  it  is  sought  to  fix 
upon  the  woman  a  charge  of  adultery. 
Addison   on   Torts,   698;    2    Greenl. 


CHAP.  III.] 


PROOF    OF   MARRIAGE. 


83. 


we  repudiate  the  doctrine  that  the  marriage  abroad  of  domi- 
ciled citizens  of  the  United  States  is  void  unless  it  was  solem- 


Ev.  461;  1  Bish.  Mar.  &  Div.  §  442, 
4th  ed.  But  had  the  supposed  mar- 
riage taken  place  in  this  state,  evi- 
dence that  a  ceremony  was  performed 
ostensibly  in  celebration  of  it,  with 
the  apparent  consent  and  cooperation 
of  the  parties,  would  have  been  evi- 
dence of  a  marriage,  even  though  it 
had  fallen  short  of  showing  that  the 
statutory  regulations  had  been  com- 
plied with,  or  had  affirmatively  shown 
that  they  were  not.  Whatever  the 
form  of  ceremony,  or  even  if  all  cer- 
emony was  dispensed  with,  if  the  par- 
ties agreed  presently  to  take  each  other 
as  husband  and  wife,  and  from  that 
time  lived  together  professedly  in  that 
relation,  proof  of  these  facts  would  be 
suHicient  to  constitute  proof  of  a  mar- 
riage binding  upon  the  parties,  and 
which  would  subject  them  and  others 
to  legal  penalties  for  a  disregard  of  its 
obligations.  This  has  become  the  set- 
tled doctrine  of  the  American  courts  ; 
the  few  cases  of  dissent  or  apparent 
dissent  being  borne  down  by  a  great 
weight  of  authority  in  favor  of  the 
rule  as  we  have  stated  it.  Fenton  v. 
Reed,  4  Johns.  52;  Jackson  v.  Winne, 
7  Wend.  47;  Starr  v.  Peck,  1  Hill, 
270;  Rose  v.  Clark,  8  Paige,  574; 
Matter  of  Taylor,  9  Paige,  611 ;  Clay- 
ton V.  Wardell,  4  N.  Y.  230;  Cheney 
V.  Arnold,  15  N.  Y.  345;  O'Gara  v. 
Eisenlohr,  38  N.  Y.  296 ;'  Pearson  v. 
Ilowey,  6  Ilalst.  12;  Hantz  v.  Sealy, 
6  Biiin.  405;  Commonwealth  v.  Stump, 
53  Pcnn.  St.  132;  Newbury  v.  Bruns- 
wick, 2  Vt.  151;  State  v.  Rood,  12  Vt. 
396  ;  Northfield  v.  Vcrshire,  33  Vt. 
110;  Duncan  v.  Duncan,  10  Ohio,  N. 
S.  181 ;  Carmichael  i'.  State,  12  Ohio, 
N.  S.  553;  State  v.  Patterson,  2  Ired. 
346  ;  Londonderry  v.  Chester,  2  N.  II. 
2fi8;  Keycs  r.  Keycs,  2  Foster,  5.">3; 
Bashaw  v.  State,  1  Yerg.  177;  Gris- 


ham  V.  State,  2  Yerg.  589 ;  Chescl- 
dine  v.  Brewer,  1  H.  &  IMcH.  152; 
State  V.  Murphy,  6  Ala.  765;  Potier 
V.  Barclay,  15  Ala.  439  ;  Dumaresly 
V.  Fishly,  3  A.  K.  Marsh.  368;  Graham 
V.  Bennet,  2  Cal.  503;  Case  v.  Case, 
17  Cal.  598  ;  Patton  v.  Philadelphia,  1 
La.  An.  98  ;  Holmes  v.  Holmes,  6  La. 
R.  463;  Hallett  v.  Collins,  10  How. 
174."  Cooley,  J.,  Hutchins  v.  Kim- 
mell,  31  Mich.  R.  130. 

"  It  has  been  held  in  this  state  that 
the  common  law  as  it  exists  among  us 
will  be  presumed  to  prevail  in  a  foreign 
country  in  the  absence  of  proof  to  the 
contrary ;  High,  appellant,  2  Doug. 
Mich.  515;  Crane  v.  Hardy,  1  Mich. 
56  ;  and  though  it  may  be  questionable 
if  this  doctrine  is  to  be  applied  univer- 
sally, it  cannot  be  disputed  that  the 
reason  of  it  is  applicable  to  all  mar- 
riages celebrated  in  Christian  coun- 
tries, in  which  it  may  be  properly  as- 
sumed that  a  general  common  law  on 
the  subject  of  marriage  still  prevails. 
Whart.  Confl.  L.  §  171.  And  as  has 
been  well  said,  the  inconvenience  of 
adhering  to  more  rigid  rules  in  the 
proof  of  foreign  marriages  would,  in 
a  country  so  largely  populated  by  im- 
migrants as  is  ours,  be  peculiarly  great, 
and  put  courts  and  litigants  to  useless 
trouble  and  expense  in  every  instance. 
Bish.  Mar.  &  Div.  §  528,  4th  ed. 
Polygamous  and  incestuous  marriages 
celebrated  in  countries  where  they 
are  permitted,  are  nevertheless  treated 
as  invalid  here,  because  they  are  con- 
dennied  by  the  common  voice  of  civi- 
lized nations,  which  establishes  a  com- 
mon law  forbidding  them  ;  and  the 
same  reasoning  which  condemns  them 
must  sustain  the  marriages  by  mere 
consent  which  the  common  law  ])er- 
mits  and  sanctions.  Whart.  Confl. 
L.  §  180.  And  especiallv  should  thi.s 
101 


§8^0 


THE   LAW   OF   EVIDENCE. 


[book  I. 


nized  with  forniiilities  requisite  in  the  place  of  solemnization. ^ 
Even  on  the  strictest  view,  the  judex  fori  will  presume,  until  the 
contrary  be  proved,  that  a  marriage  abroad  was  in  conformity 
with  the  lex  loci  contractus? 

§  84.  Waiving,  however,  these  considerations,  as  belonging 
more  properly  to  another  branch  of  jurisprudence,  we 
may  hold  it  to  be  a  principle  of  private  international 
law,  as  in  force  in  the  United  States,  that  marriages 
may  be  proved  by  parol.^  That  which  the  parties  hold 
themselves  out  as  being,  they  cannot  ordinarily  contest ; 
and  hence  general  reputation,  in  respect  to  their  marriage,  which 
reputation  their  conduct  establishes,  may  be,  with  cohabitation, 
primary  evidence  of  marriage.  A  fortiori  is  family  reputation 
of  marriag^e  authoritative  in  such  issues.^     The  fact  of  cohabita- 


By  private 
interna- 
tional law 
marriages 
may  be 
proved  by 
parol. 


be  the  case  Avhere  tbe  parties,  after 
taking  sucla  steps  abroad  to  constitute 
a  marriage  as  would  be  sufficient  un- 
der our  laws,  remove  afterwards  to 
this  country,  and  in  apparent  reliance 
upon  the  marriage,  and  the  protec- 
tion our  laws  would  give  it,  continue 
for  manj'  years  to  live  together  as  hus- 
band and  wife,  recognizing,  as  there  is 
every  reason  to  believe  they  did,  the 
validity  and  binding  obligation  of  the 
marriage  for  all  purposes."  Cooley,  J. 
Hutchins  v.  Kimmell,  31  Mich.  K. 
133. 

1  See  Whart.  Confl.  of  L.  §  173  et 
seq. 

2  Redgrave  v.  Redgrave,  38  Md. 
93.     See  fully,  infra,  §  1297. 

8  Whart.  Confl.  of  L.  §  171  ;  Van 
Tuyl  V.  Van  Tuyl,  8  Abb.  (N.  Y.)  Pr. 
N.  S.  b;  S.  C.  bl  Barb.  235;  Bissell 
V.  Bissell,  55  Barb.  325;  Physick's  Est. 
2  Brewst.  179  ;  Guardians  of  the  Poor 
V.  Nathans,  2  Brewst.  149  ;  Richard  v. 
Brehm,  73  Penn.  St.  140 ;  111.  Land 
Co.  V.  Bonner,  75  111.  315;  Murphy  v. 
Georgia,  50  Ga.  150;  Campbell  v. 
Gullatt,  43  Ala.  57  ;  Dickerson  v. 
Brown,  49  Miss.  357.  See  Omohun- 
dro's  Est.  GG  Penn.  St.  113. 

*  See   infra,   §   211,    224.     Kay  v. 

102 


Vienne,  3  Camp.  123;  Birt  v.  Barlow, 
1  Doug.  174;  Read  v.  Passer,  1  E?p. 
214;  Doe  v.  Fleming,  4  Bing.  266; 
Goodman  v.  Goodman,  28  L.  J.  Ch.745 ; 
Brower  v.  Browers,  1  Abb.  (N.  Y.) 
App.  214  ;  Jewell  v.  Jewell,  1  How. 
U.  S.  219  ;  Crawford  v.  Blackburn,  23 
Wall.  1 75  ;  Senser  v.  Bower,  1  Penn. 
R.  450;  Com.  v.  Stump,  53  Penn.  St. 
132  ;  Barnum  v.  Barnum,  42  Md.  257  ; 
Physick's  Est.  2  Brewst.  179  ;  Guard- 
ians of  the  Poor  v.  Nathans,  2  Brewst. 
149 ;  Dickerson  v.  Brown,  49  Miss. 
357  ;  Evans  v.  Morgan,  2  C.  &  J.  453  ; 
Doe  V.  Fleming,  4  Bing.  266.  ''  When- 
ever the  witness  is  shown  to  have  de- 
rived his  information  from  some  as- 
signable individual,  it  is  excluded  as 
hearsay.  Shedden  v.  Att.  Gen.  2  S. 
&  T.  170.  Following  the  principle 
laid  down  by  Mr.  Fraser  (Eraser  on 
the  Personal  and  Domestic  Relation, 
vol.  1,  p.  207),  Lord  Redesdale,  in  a 
case  in  the  house  of  lords  (Cunning- 
hame  v,  Cunninghame,  2  Dow,  511), 
held  that  repute  to  raise  presumjJtion 
of  marriage  must  be  founded  on  gen- 
eral not  singular  opinion;  a  divided 
repute  is  on  such  a  subject  no  evidence 
at  all.  Here  his  lordship  was  speak- 
ing probably  of  Scotch  marriages  only ; 


CHAP.  III.] 


PROOF   OF  MARRIAGE. 


[§84. 


tion  as  man  and  wife  raises  a  presumption  of  a  legal  marriari-e  ;  ^ 
and  this  is  particularly  so  after  a  long  interval  of  time.^  But  such 
cohabitation  must  be  continuous  and  consistent  to  sustain  the 
presumption.^     The  reputation,  which  is  thus  to  be  proved,  may 


for  in  the  recent  case  of  Lyle  v.  El- 
wood,  23  W.  R.  157  ;  L.  R.  19  Eq.  98, 
Vicc-Cliancellor  Hall  said  :  "  It  can- 
not be  contended  that  Avherever  there 
is  evidence  of  repute  on  one  side  and 
the  other,  a  marriage  cannot  be  estab- 
lished." Powell's  Evidence,  4th  ed. 
147. 

"  Marriage  is  a  civil  contract,  jure 
gentium,  to  the  validity  of  which  the 
consent  of  parties  able  to  contract  is 
all  that  is  required  by  natural  or  pub- 
lic law.  If  the  contract  is  made  per 
verba  de  praesenti,  though  it  is  not  con- 
summated by  cohabitation,  or  if  it  be 
made  per  verba  de  futuro,  and  be  fol- 
lowed by  consummation,  it  amounts  to 
a  valid  marriage  in  the  absence  of  all 
civil  regulations  to  the  contrary.  2 
Greenl.  Evid.  §  4G0'.  Marriage  is  a 
civil  contract  which  may  be  completed 
by  any  words  in  the  present  time,  with- 
out regard  to  form.  Hantz  v.  Sealy, 
G  Binn.  405.  The  fact  of  marriage, 
then,  may  be  proved  and  established 
by  competent  and  satisfactory  evi- 
dence. What  kind  of  evidence  is  held 
to  be  satisfactory  ?  Marriage  may 
be  proved  in  civil  cases  by  reputation, 
declarations,  and  conduct  of  the  par- 
ties, and  other  circumstances  usually 
accomi)anying  that  relation.  2  Greenl. 
Evid.  §  4G2.  For  civil  purposes,  rep- 
utation and  cohabitation  are  suflicient 
evidence  of  marriage.  Senser  et  al.  v. 
Bower  et  u.x.  1  Penn.  Rep.  450.  In  all 
civil  cases,  involving  merely  the  right 
of  property,  the  fact  of  marriage  may 
be  proved  by  long  continued  cohabi- 
tation as  man  and  wife.  TiiorndcU  v. 
Morrison,  1  Casey,  32G.  Both  cohal)- 
itation  and  re[)utation  arc  necessary  to 
establish   a  presumption  of  marriage, 


where  there  is  no  proof  of  actual  mar- 
riage. Commonwealth  v.  Stump,  3  P. 
F.  Smith,  132.  Marriage  is  in  law  a 
civil  contract,  not  requiring  any  par- 
ticular form  of  solemnization  before 
officers  of  church  or  state.  Ibid.  Un- 
equivocal and  frequent  admissions  of 
marriage,  accompanied  by  long  con- 
tinued cohabitation  and  reputation,  are 
frequently  most  satisfactory  evidence 
of  marriage.  Vincent's  appeal,  10  P. 
F.  Smith,  228."  Mercur,  J.,  Richard 
V.  Brehm,  7  3  Penn.  St.  144. 

See,  also,  Fenno  v.  Fenno,  1  Weekly 
Notes,  165. 

^  Infra,  §  1297  ;  Cunningham  v. 
Cunningham,  2  Dow,  507 ;  Piers  v. 
Piers,  2  H.  L.  Gas.  337. 

^  Campbell  v.  Campbell,  L.R.  1  Sc. 
App.  193  ;  Powell's  Evidence,  4th  ed. 
76. 

3  "It  is  not  a  sojourn,  nor  a  habit  of 
visiting,  nor  even  a  remaining  with  for 
a  time.  None  of  these  fall  within  the 
true  idea  of  cohabitation  as  a  fair  pre- 
sumption of  marriage.  Neither  cohab- 
itation nor  reputation  of  marriage,  nor 
both,  is  marriage.  When  conjoined, 
they  are  evidence  from  which  a  pre- 
sunqition  of  marriage  arises.  The  le- 
gal idea  of  cohabitation  is  that  which 
carries  with  it  a  natural  belief  that  it 
results  from  marriage  only.  To  co- 
habit is  to  live  or  dwell  together;  to 
have  the  same  hal)italion  ;  so  that 
where  one  lives  and  dwells  there  does 
the  other  live  and  dwell  always  with 
him.  The  Scotch  expression  conveys 
the  true  idea,  perhaps,  better  than  our 
own  —  '  the  habit  ami  repute  '  of  mar- 
riage. Thus,  when  we  see  a  man  and 
woman  constantly  living  together, — 
where  one  is  dwelling,  there  the  other 

103 


§84.] 


THE   LAW   OF   EVIDENCE. 


[rook  I. 


be  the  reputation  of  either  a  neighborhood  or  of  a  family,  and 
may  be  established   by  a   single    witness.^     But  proof  of    mere 


constantly  dwells  with  him,  —  we  ob- 
tain the  first  idea  or  first  step  in  the 
presumption  of  marriage  ;  and  we  add 
to  this  that  the  parties  so  constantly 
living  together  are  reputed  to  be  man 
and  wife,  and  so  taken  and  received 
by  allwho  know  them  both,  we  take 
the  second  thought  or  second  step  in 
the  presumption  of  the  fact  of  a  mar- 
riage. Marriage  is  the  cause,  these 
follow  as  the  effect.  "When  the  full 
thought  contained  in  these  words,  co- 
habitation and  reputation  of  marriage, 
is  embraced,  we  discover  that  an  in- 
constant habitation  and  a  divided  rep- 
utation of  marriage  carry  with  them  no 
full  belief  of  an  antecedent  marriage 
as  the  cause.  The  irregularity  in  these 
elements  of  evidence  is  at  once  a  reason 
to  think  there  is  irregularity  in  the  life 
itself  the  parties  lead,  unless  attended 
by  independent  facts,  which  aid  in 
the  proof  of  marriage.  Without  con- 
comitant facts  to  prove  marriage,  such 
an  irregular  cohabitation  and  partial 
reputation  of  marriage  avail  nothing 
in  the  proof  of  marriage.  It  is  pre- 
cisely in  this  respect  that  this  case  has 
no  resemblance  to  Vincent's  Appeal. 
Had  that  case  rested  on  cohabitation 
and  reputation  alone,  no  marriage 
could  have  been  inferred, —  the  '  double 
life  '  and  divided  reputation  of  mar- 
riage would  have  decidedly  condemned 
the  conclusion.  But  De  Amarelli's 
conduct  was  marked  by  so  many  cir- 
cumstances disclosing  a  true  marriage, 
that  when  linked  with  the  pure,  un- 
spotted character  of  Catharine  Evans, 
her  wife-like  conduct,  and  the  reputa- 
tion of  their  marriage  beginning  with 
facts  tending  to  prove  marriage  at  the 
very  outset,  the  evidence  of  marriage 
was  complete ;  while  the  reasons  ac- 


countin"'  for  inconstant  cohabitation 
were  strong  and  peculiar. 

"  It  is  argued  here  that  the  mere- 
tricious intercourse,  to  be  inferred 
from  the  early  relations  of  these  par- 
ties, ought  not  to  forbid  a  conclusion 
that  the  marriage  relation  existed 
afterwards,  and  we  are  referred  to 
(among  others)  the  case  of  Campbell 
V.  Campbell,  Law  R.  1  Scotch  Divorce 
and  Appeal  Cases,  before  the  house 
of  lords.  But  no  case  better  illus- 
trates the  true  idea  of  cohabitation 
than  it.  Mrs.  Ludlow,  a  young  and 
comely  woman,  eloped  with  Captain 
Campbell.  Ludlow,  the  husband,  died 
within  two  or  three  years  afterwards. 
Captain  Campbell  and  his  reputed 
wife  went  to  America,  and  thereafter 
constantly  lived  together  as  man  and 
wife,  were  so  accepted  and  known  in 
his  regiment,  and  on  his  return  to 
England  were  so  received  and  recog- 
nized among  all  his  relatives  and  ac- 
quaintances, including  his  relative, 
the  Earl  of  Breadalbane,  whose  es- 
tate became  the  subject  of  controversy. 
They  had  children,  who  were  baptized 
as  theirs,  and  were  accepted  and  re- 
ceived as  legitimate  offspring.  Among 
other  facts,  Captain  Campbell  gave 
to  her  a  general  power  of  attorney, 
in  which  he  named  her  as  '  his  wife, 
Eliza  M.  Campbell,  residing  at  Ma- 
pleburgh  (his  residence),  near  the 
city  of  Edinburgh.  Thus  they  lived 
constantly  together,  moving  from  place 
to  place  together,  always  known  and 
recognized  as  husband  and  wife,  until 
his  death,  and  after  his  death  his  son 
was  recognized  as  heir  in  legal  pro- 
ceedings of  tailzie.  The  evidence  of 
cohabitation  and  general  repute  of 
marriage    was    most    complete,    said 


1  Evans  v.  Morgan,  2  C.  &  J.  453. 


104 


CHAP.  III.] 


PROOF   OF   MARRIAGE. 


[§84. 


reputation,  unsupported  by  that  of  cohabitation,  is  by  itself  in- 
sufficient to  establish  a  marriage.^ 


Lord  Chancellor  Chelmsford.  The 
proof  was  so  strong  and  overwhelm- 
ing, it  overcame  the  original  mere- 
tricious relation,  and  afforded  con- 
vincing evidence  of  a  subsequent 
marriage  by  contract,  all  that  is  re- 
quired by  the  Scottish  law  of  mar- 
riage. In  the  case  before  us  there  is 
no  such  evidence,  the  case  being  left 
to  rest  upon  a  broken  and  irregular 
cohabitation,  and  a  reputation  whose 
weight  lay  on  the  side  of  single  life. 
From  the  whole  evidence  we  can  draw 
no  other  conclusion  than  that  Eliza- 
beth Sithens  was  a  kept  mistress,  and 
not  a  wife."  Agnew,  Ch.  J.,  Yard- 
ley's  Estate,  75  Penn.  St.  211-213. 

^  See  cases  cited  infra,  §  205. 

The  following  notes  of  rulings  may 
be  of  use  as  bearing  on  questions  of 
this  class  :  Where  the  lex  fori  does 
not  require  record  proofs,  the  testi- 
mony of  a  witness,  present  at  the 
marriage,  is  prima  facie  evidence  to 
prove  such  nuirriage,  and  as  such,  if 
undisputed,  is  sufficient  to  convict. 
Greenleaf  on  Ev.  §§  464,  493;  State  v. 
Kean,  10  N.  H.  347;  Warner  v.  Com. 
2  Va.  Cas.  95;  Com.  v.  Putnam,  1 
Pick.  136;  Wolverton  v.  State,  16 
Ohio,  176;  R.  v.  Manwaring,  Dears. 
&  B.  132;  7  Cox  C.  C.  192;  R.  v.  Cra- 
dock,  3  F.  &  F.  83  7  ;  R.  v.  Hawes,  2 
Cox  C.  C.  432;  1  Den.  C.  C.  270. 

In  Maine,  Pennsylvania,  Delaware, 
Virginia,  South  Carolina,  Georgia, 
Alabama,  Indiana,  Texas,  and  Ohio, 
as  well  as  in  England,  the  defendant's 
admi^^sions  as  to  a  former  marriage 
may  be  given  iji  evidence  to  prove 
the  fact,  of  such  marriage.  Cook  v. 
State,  11  Gforg.  53;  State  v.  Lash, 
1  Ilarr.  (N.  J.)  380;  Cayford's  case,  7 
Greenl.  57;  State  i'.  Hodg.'ikins,  19 
Maine,  155  ;  State  v.  Libby,  44  Maine, 
469;  Gorman  v.  State,  23   Tex.  646; 


Com.  V.  Murtagh,  1  Ashmead,  272  ; 
Forney  v.  Ilallacher,  8  S.  &  R.  159; 
Warner's  case,  2  Va.  Cases,  95;  State 
V.  Hilton,  3  Rich.  434 ;  State  v.  Brit- 
ton,  4  McCord,  256;  R.  v.  Simmonsto, 
1  Car.  &  Kir.  164;  Wolverton  v. 
State,  16  Ohio,  173;  Langtry  v.  Stale, 
30  Alab.  536;  State  v.  Seals,  16  Ind. 
352;  Squire  i-.  State,  46  Ind.  459; 
Carmichael  v.  State,  12  Ohio  State  R. 
553;  Cameron  v.  States,  14  Alab.  546; 
State  V.  Sanders,  30  Iowa,  582  ; 
Oneale  v.  Com.  17  Grattan,  582.  As 
to  Kentucky,  see  Robinson  v.  Com.  6 
Bush,  309.  The  same  view  is  taken 
in  Canada.  R.  v.  Creamer,  10  Low. 
Can.  R.  404.  In  California,  as  in  other 
states,  this  is  by  statute.  Case  v.  Case, 
17  Cal.  598. 

In  Massachusetts,   Minnesota,  Con- 
necticut,  and  New  York,  however,  a 
contrary  doctrine  has  been  expressed. 
Com.    V.   Littlejohn,    15    Mass.    163 
State   V.    Armstrong,   4    Minn.    335 
State    V.    Roswell,   6    Connect.   446 
People   V.  Humphrey,    7   John.    314 
Clayton   v.    Wardell,   4    Comst.   230 
Gahagan  v.   People,  1  Parker  C.  C 
383.     See  People  v.   McCormack,  4 
Parker  C.   C.    17;  Physick's  Est.    2 
Brewst.  1 79. 

But  while  cohabitation  may  be  evi- 
dence of  marriage,  it  cannot  make 
a  void  marriage  valid.  Williams  v. 
State,  44  Alab.  24  (SalTord,  J. 
1870). 

When  the  marriage  was  in  a  for- 
eign country,  such  evidence,  when 
made  deliberately,  has  fnupiently  been 
considered  sufficient.  Cayford's  case, 
7  Greenl.  57.;  Truman's  case,  1  East 
P.  C.  4  70;  R.  V.  Newton,  2  M.  & 
Rob.  503;  1  C.  &  K.  1G4;  Iligg  v. 
Curgenven,  2  Wils.  399.  See,  per 
contra,  People  v.  Humphrey,  7  John- 
son, 314  ;  Weinberg  v.  State,  25  Wise. 
105 


§85.] 


THE   LAW   OF  EVIDENCE. 


[book  I. 


§  85.  An  important  distinction,  however,  is  to  be  noticed  be- 
In  cases  tween  suits  in  which  the  legitimacy  of  children  or  the 
chaiKiiiff  a   sanctitv  of  the  domestic  relation  is  at  issue,  and  those 

penal  mar-     _  •' 

riajre  in  whicli  the  effort  is  to  impose  on  the  defendant  penal- 

stricter 

proof  is  re-  tics  attachable  to  an  illegal  marriage.  In  the  first  case 
'^"'"^^'^ '  we  have  in  favor  of  the  marriage  the  presumption  of 
legitimacy,!  as  well  as  those  of  good  faith,^  and  of  regularity.^ 
In  the  second  case  we  have  against  the  marriage  the  presumption 
of  innocence.  We  cannot,  therefore,  transfer  the  decisions  in 
the  last  class  of  cases  to  the  former.  In  this  country  the  dis- 
tinction is  of  peculiar  interest.  An  emigrant  lands  on  our  shores 
with  a  wife  whom  he  has  married  without  the  observance  of 
those  restrictions  which  the  peculiar  social  condition  of  several 
European  states  has  imposed.  He  rears  children  whom  he  ac- 
knowledges, and  who  claim  after  his  death  to  inherit  his  estate. 


370;  Bird  v.  Com.  21  Grat.  800,  hold- 
ing tliat  where  the  lex  loci  contractus 
required  certain  solemnities,  such  so- 
lemnities should  be  proved  to  have 
taken  place  ;  and  although  this  goes 
too  far,  it  is  clear  that  without  corrob- 
oration a  confession  is  insufficient.  R. 
V.  Flaherty,  2  C.  &  K.  782. 

It  was  held  not  enough  to  prove  a 
marriage,  that  the  defendant,  about 
twenty  years  before  the  offence  was 
committed,  stated,  when  hiring  a 
house,  that  he  had  a  wife  and  child, 
and  afterwards  moved  into  the  house 
with  a  woman  whom  he  called  Miss 
Ham,  and  with  whom,  for  several 
years,  he  lived  as  his  wife.  Ham's 
case,  2  Fairf.  391;  State  v.  Roswell, 
6  Connect.  446. 

In  Massachusetts  it  is  now  pro- 
vided by  statute  that  circumstantial 
and  presumptive  evidence  may  be  re- 
ceived to  prove  the  fact  of  marriage. 
Suppl.  Rev.  Stat.  166-7,  184;  Com. 
V.  Johnson,  10  Allen,  196. 

In  Maryland  it  has  been  held,  in 
deviation  from  the  canon  and  com- 
mon law,  that  a  marriage  contracted 
merely  per  verba  de  praesoiti,  is  not 

106 


valid  without  some  form  of  religious 
ceremony.  Denison  v.  Denison,  3.5  Md. 
361.  See,  howevei*,  for  a  more  liberal 
view,  Barnum  v.  Barnum,  42  Me.  251. 

The  right  to  prove  marriages  by 
parol  is  not  affected  by  the  statutes 
permitting  parties  to  be  called  as  wit- 
nesses. Rockwell  V.  Tunnicliff,  62 
Barb.  408. 

The  same  right  exists  in  suits 
brought  in  an  action  by  the  wife  for 
damages  in  causing  her  husband's 
death.  Lehigh  R.  R.  v.  Hall,  61  Penn. 
St.  361.  As  against  the  parties  their 
admissions  of  marriage  can  be  used. 
Carotti  v.  State,  42  Miss.  344.  A  man 
holding  a  woman  out  as  his  wife  is 
estopped,  in  a  suit  against  him  by 
tradesmen  for  necessities  furnished  to 
her,  from  repudiating  the  relationship. 
Infra,  §  1151;  Johnston  v.  Allen,  39 
How.  (N.  y.)  Pr.  506. 

That  the  declarations  of  an  ances- 
tor can  be  received  to  establish  mar- 
riage, we  will  elsewhere  see.  See 
infra,  §  203  et  seq. 

1  Infra,  §  1298. 

2  Infra,  §  1248. 
8  Infra,  §  1297. 


CHAP.  III.]  PROOF   OF   MARRIAGE.  [§  85. 

Here,  the  fact  of  inarriage  being  conceded,  come  in  t\YO  im- 
portant presumptions  to  sustain  the  legitimacy  of  the  children. 
The  first  is  that  all  acts  are  presumed  to  be  regular  until  the 
contrary  appears.  The  second  is  that  when  the  evidence  is 
equally  balanced,  the  courts,  in  all  questions  of  legitimacy,  will 
favor  the  hypothesis  of  matrimony.^  On  the  other  hand,  if  the 
emigrant  in  question  has  come  to  this  country  without  a  wife, 
marries  here,  establishes  a  home  and  family,  and  then  is  ar- 
rested here  on  the  charge  of  bigamy,  based  on  an  alleged  mar- 
riage in  his  native  land  ;  the  fact  of  marriage,  instead  of  being 
aided  by  j^resumptions  which  in  a  doubtful  case  would  turn  the 
scales  in  its  favor,  has  to  encounter  presumptions  which  in  a 
doubtful  case  will  turn  the  scales  against  it.  The  defendant's 
second  marriage  is  not  contested,  and  is  looked  on  with  peculiar 
favor  by  the  judicial  polity  of  a  country  such  as  this,  which 
seeks  to  encourage  family  growth.^  But  what  is  much  more 
important,  the  fact  of  the  first  marriage  is  the  gist  of  the  prose- 
cution's case,  and  to  it  applies  eminently  the  maxim,  tluit  the 
charge  of  guilt,  to  jus.tify  a  conviction,  must  be  made  out  be- 
yond reasonable  doubt.  Hence  we  find  courts  which  are  ready, 
when  a  marriage  is  to  be  adjudicated  on  its  civil  relations, 
to  regard  the  husband's  own  admissions  as  proof  of  the  fact, 
shrinking  from  this  conclusion,  when  the  object  is  to  sustain  a 
criminal  prosecution  against  him  for  bigamy.  Confessions  are 
only  authoritative,  it  is  well  argued,  when  there  is  clear  pi-oof  of 
the  corpus  delicti ;  ^  and  here  the  corpus  delicti  is  the  alleged 
first  marriage.  How  is  this  to  be  "  clearly  proved,"  independent 
of  the  defendant's  confession  ?  Now,  in  view  of  the  issue  being 
criminal,  we  can  easily  understand  how  a  court  should  say,  as 
some  courts  have  said  :  "  The  lex  loci  contractus  prescribes  cer- 
tain solemnities  as  necessary  to  constitute  the  formalities  of  mar- 
riage, and  therefore,  in  view  of  the  maxim,  '■locus  re;/it  actum,' 
we  must  hold  that  any  other  proof  of  the  fact  of  marriages  is  but 
secondary  and  is  not  to  be  received."  Had  tlie  lirst  wife  been 
brought  to  this  country,  and  here  acknowledged,  the  case  would 

1  See  Patterson  v.  Gaines,  G  How.  =  Sec  Wh.  Con.  of  L.  §   150;  Wh. 

U.  S.  550;  Sliaflier  v.  State,  20   Ohio     Cr.  Law,  §  2G30. 
n.  3.     See  supra,  §§  1248,  1297-8.  »  s^.g  Whart.  Cr.  L.  §  G83  ;  and  sco 

R.  V.  Flaherty,  2  C  &  K.  782. 
107 


§  86.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

have  been  different.  But  when  the  prosecution  rests  simply  on 
a  technical  first  marriage,  it  is  not  inconsistent  in  courts,  who 
recognize  the  validity  of  a  consensual  marriage,  to  hold  that  such 
technical  first  marriage  should,  in  a  criminal  issue,  in  order  to  be 
made  out  beyond  reasonable  doubt,  be  proved  in  the  way  the  lex 
loci  contractus  prescribes,  and  that  secondary  evidence  should 
only  be  received  when  the  presumptions  of  the  lex  loci  contractus 
are  peculiarly  onerous,  or  when  the  primary  evidence  cannot  be 
obtained.^ 

§  86,  It  is  true  that  when  the  lex  fori  recognizes  a  consensual 
marriage  as  valid,  the  proof  of  a  consensual  marriage  will  sustain 
an  indictment  for  bigamy.  But  the  proof  must,  establish  the 
marriage  beyond  reasonable  doubt.  Mere  confessions  in  a  mat- 
ter of  this  kind,  where  talk  is  often  so  careless,  and  words  used 
in  such  varied  significations,  require  a  peculiarly  large  measure 
of  that  scrutiny  which  all  confessions  invoke.  Of  course,  if  a 
man,  after  a  consensual  marriage  in  a  country  where  consensual 
marriages  are  invalid,  comes  with  his  wife  to  a  country  where 
they  are  valid,  and  there  lives  with  her  as  her  husband,  then 
this  is,  at  least,  a  validation  of  the  former  invalid  marriage.  But 
if  he  leave  her  abroad,  without  such  validation,  then  a  court 
in  our  own  land,  should  a  prosecution  be  brought  against  him 
for  bigamy,  may  well  refuse  to  be  satisfied  by  mere  admissions, 
or  even  by  proof  of  cohabitation.  There  must  be  proof,  to  sus- 
tain the  allegation  of  the  indictment,  of  the  solemnization  of 
the  first  marriage.  We  may  not  insist  upon  proof  that  all  the 
prescriptions  of  the  lex  loci  contractus  were  complied  with  ;  for 
these  are  sometimes  so  contrary  to  our  national  policy,  and  so 
repugnant  to  the  common  law  of  Christendom,  that  there  may 
be  cases  in  which  we  may  refuse  to  recognize  them  as  limiting  an 
international  institution  such  as  marriage  really  is.  But  while 
we  may  thus  occasionally  dispense  with  these  formalities,  we 
must,  nevertheless,  insist,  when  a  foreign  marriage  is  made  the 
basis  of  a  criminal  prosecution  in  our  own  land,  that  such  foreign 
marriage  should  be  proved  by  showing  that  in  such  marriage 
there  was  a  bond  fide  matrimonial  contract  by  parties  capable  of 

1  See   State   v.    Horn,  43    Vt.  20;  y.  Com.  21  Grat.  800.     See,  in  a  civil 

People  V.   Humphrey,  7  Johns.  314;  issue,  Harris  v.  Cooper,  31  Up.  Can. 

Weinberg  v.  State,  25  "Wise.  370;  Bird  Q.  B.  182. 
108 


CHAP.  III.]  COPIES    OF   DOCUMENTS.  [§  89. 

contracting,  followed  by  cohabitation.  To  establish  the  contract, 
the  foreign  registry,  sustained  by  proof  of  the  foreign  law,  is  the 
best  evidence.  For  this,  however,  the  testimony  of  witnesses  to 
the  fact  may  be  substituted,  supposing  the  registry  cannot  be 
obtained.  And  this  holds  good  even  where  the  marriage  was 
not,  in  matters  purely  artificial,  in  compliance  with  the  law  of 
the  place  of  solemnization,  if  it  was  a  valid  marriage  by  the  com- 
mon law  of  Christendom, — i.  e.  if.  the  parties  were  capable  of 
contracting,  and  the  contract  was  an  exclusive  sexual  union  for 
life.i 

§  87.  The  testimony  of  a  witness,  present  at  the  marriage,  is 
admissible  and  adequate  proof,  unless  the  law  requires  official 
evidence.^  When  the  marriage  is  extra-territorial,  the  officiating 
clergyman,  according  to  American  cases,  may  not  only  prove  the 
marriage,  but  the  foreign  law  under  which  it  was  solemnized.^ 
But  in  England,  unless  a  witness  be  an  expert,  he  cannot  prove 
in  this  respect  the  foreign  law.*  In  domestic  marriages,  the 
fact  that  a  justice  of  the  peace  or  clergyman  performed  the  cere- 
mony, is  proof  that  he  professed  and  was  generally  understood  to 
have  the  authority  so  to  do.^  Whether  the  wife  can  be  a  witness 
is  hereafter  discussed.^ 

III.    DIFFERENT  KINDS   OF  COPIES. 

§  89.  Originals,  by  the  Roman  law,  are  styled  exemplaria, 
autoffrapha,  archetypa.  Copies  are  called  by  the  earlier  ciassifica- 
jurists  exempla,  apograjiha.,  but  afterwards  were  some-  *'°"' 
times  mentioned  as  copiae,  translatum,  transcriptum^  exemplar^ 
exemplatio,  duplarium.  Copies  were  divided  into  certified, 
copiae  authe7iticae,  vidimatae,  and  simple,  simpllces^  incertae, 
vagac.  The  first,  to  which  the  certificate  Vidimus  (hence  vidi- 
matae) was  attached,  were  regarded,  when  certified  by  the  proper 

1  Whart.  Cr.  Law,  7tli  cd.  §  2630.  *  R.  v.  Povey,  G  Cox  C.  C.  83;   S. 

2  R.   V.  Manwarins,  D.  &  B.  C.  C.  P.,  R.   v.   Smith,  14   Up.   Can.  Q.  B. 
132;  7  Cox  C.  C.  192;   State  r.  Kean,  565  ;  but  see  Wli.  Con.  of  L.  §   7  75, 
10  N.  II.  34  7;  Warner  v.  Com.  2  Va.  and  Sussex  Poera<;e  case,  there  cited; 
Ca.  95;  Com.  v.  Putnam,  1  Pick.  13G;  and  see  fully,  infra,  §§  300-1. 
Wolverton  v.  State,  IG  Ohio,  176.  ^  Bird  v.  Com.  21  Grat.  800;  St.ato 

8  Bird  V.  Com.   21   Grat.  800;  Am.     v.  Abbey,  3  Williams  (29  Vt.),  60. 
Life   &   Trust    Co.   v.   Rosenagle,   77         «  See  infra,  §§  421-432. 
Penn.  St.  507;  State  v.  Abbey,  29  Vt. 
60. 

109 


§  90.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

officials,  as  equivalent  to  originals.  In  many  of  the  ancient 
record  offices,  the  originals  were  placed  by  themselves  in  partic- 
ular chests  or  caskets,  while  the  copies  were  inscribed  in  books, 
called  iyistrumenta  vohunina,  paneliartae^  chartularia^  antiquaria, 
regestraria,  lihri  copiales.  To  these  books  were  assigned  the 
authority  of  originals.  A  private  copy  is  by  the  Roman  law  not 
evidence.  The  Roman  practice  makes  to  this  the  following  ex- 
ceptions :  — 

1.  When  the  original  has  been  maliciously  destroyed  by  the 
opposite  party. 

2.  When  in  no  other  way  could  the  information  given  by  the 
instrument  be  obtained.^ 

By  the  Decretals  (cap.  16,  x.  II.  22)  an  exemplification  by  the 
proper  authority  is  evidence ;  and  in  the  practice  of  the  modern 
Roman  law,  a  notary,  as  to  matters  within  his  range,  is  such  an 
authority.^ 

§  90.  When  we  come  to  copies  of  written  instruments,  in 
Secondary  view  of  the  fact  that  there  are  degrees  of  accuracy  as 
of 'do°u^  widely  distinguished  as  is  written  testimony  from  oral ; 
mentsad-^  we  Cannot  escape  the  conclusion  that  a  party  who,  hav- 
grees.  ing  in  his  power  evidence  of  a  higher  degree,  throws 

much  suspicion  on  his  case  if  he  withhold  such  higher  evidence, 
and  offer  that  which  is  not  only  lower,  but  necessarily  inferior  as 
a  means  of  expressing  truth. ^  Hence,  it  has  been  held  that  if  an 
exemplification  of  a  lost  record  or  deed  be  obtainable,  a  party 
will  not  be  permitted  to  prove  such  deed  or  record  by  memory  of 

^  See  Weiske,  Eeclitslex  «/i  loco.  ringen,  Add.  (Pa.)  48 ;  Stevenson  v. 

2  See  Weiske's  Kechtslex,  xi.  654.  Hoy,  43  Penn.  St.  191;  Coman  y.  State, 
By  our  new  law,  certified  copies  by  the  4  Blackf.  241  ;  Speyer  r.  Sterne,  2 
proper  officer  may  be  :  "  1.  Exempli-  Sweeny,  516;  AVilliams  v.  Waters, 
fications  under  the  great  seal  ;  2.  Ex-  36  Ga.  454  ;  Evans  v.  Boiling,  8  Port, 
emplifications  under  the  seal  of  the  (Ala.)  546.  See  Mortimer  v.  McCal- 
court  where  the  record  is  ;  3.  Office  Ian,  6  M.  &  W.  58,  69  ;  Brewster  t;. 
copies,  i.  e.  copies  made  by  an  officer  Sewell,  3  B.  &  Aid.  296  ;  Brown  v. 
appointed  by  law  for  the  purpose."  Providence,  Warren  &  Bristol  Rail- 
Best's  Evidence,  §  486 ;  Taylor's  Ev.  road  Co.  5  Gray,  35  ;  Everingham  v. 
§  1379.  Roundell,  2  Mood.  &  Rob.  138;  Ryves 

8  Supra,  §  71  ;  infra,  §  133  ;  Liebman  v.  Braddell,  Irish  Term  R.  184;  Hol- 
V.   Pooley,   1    Stark.    167  ;  Renner  t'.  land  v.  Reeves,  7  C.  &  P.  36  ;  Morris  v. 
Bank,  9  Wheat.  581  ;  AVinn  v.  Patter-  Vanderen,  1  Dall.   64;  Winn  v.  Pat- 
son,  9  Pet.  663  ;  Barney  v.  Schmeider,  erson,  9  Pet.  633. 
9  Wall.  248 ;  Hamilton  v.  Van  Swea- 

110 


CHAP.  HI.]  COPIES   OF   DOCUMENTS.  [§  90. 

witnesses.^  So  it  has  been  ruled  that  a  party  who  has  control  of 
a  certified  copy  of  a  lost  will,  will  not  be  permitted  to  prove  the 
will  orally.^  So  when  a  notarial  copy  of  a  note  is  in  a  party's 
hands,  he  will  not  be  permitted  to  prove  the  note  by  parol.^  So 
a  party  cannot  prove  a  record  by  parol  when  he  has  an  opportu- 
nity to  obtain  an  exemplification.*  The  principle  is  that  where  a 
particular  kind  of  copy  is  by  law  especially  directed  and  guarded, 
such  a  copy  is  to  be  regarded  as  so  far  primary  as  to  exclude,  so 
long  as  it  can  be  produced,  mere  recollections  by  unofficial  per- 
sons, of  what  is  registered  in  the  copy.^  But  unless  a  particular 
kind  of  copy  is,  by  either  statute  or  common  law,  or  by  peculiar 
reasons  of  policy,  made  primary,  the  fact  that  it  is  withheld,  how- 
ever much  it  may  detract  from  the  credit  of  a  party,*'  does  not 
preclude  him  from  offering  other  secondary  evidence.  As  will 
hereafter  be  seen,  the  testimony  of  a  deceased  witness  can  be 
proved  either  by  notes  of  a  short-hand  writer  sworn  to  by  him,  or 
by  the  recollection  of  a  witness  ;  and  neither  can  exclude  the 
other."  So  it  has  been  even  argued  that  a  party  is  not  excluded 
from  proving  a  lost  document,  by  the  fact  that  he  has  possession 
of  a  written  copy  of  such  document  which  could  be  verified.^  It 
is  certainly  plain  that  he  will  not  bo  precluded  from  olfering  an 
unofficial  copy  of  a  lost  note  by  the  fact  that  a  notarial  copy 
could  have  been  at  one  time  obtained  by  him  ;  he  not  having  it 
in  his  power  to  obtain  such  copy  at  the  trial.^ 

1  U.  S.  V.  Britton,  2  Mason,  4G4  ;  ^  That  it  does  so,  see  infra,  §  1200; 
Lowry  if.  Cady,  4  Vt.  504;  Cornett  and  see  Slioenberger  v.  Hackmau,  37 
V.    Williams,    20    Wall.    226    (quoted     Penn.  St.  87. 

infra,   §    135);    Hilts    v.    Colvin,    14  '  ISee  infra,  §  177. 

Johns.  182;  Piatt  v.  Haner,  27  Mich.  «  X)oe  r.   Ross,    7  M.  &  AV.    102  ; 

167  ;  Ellis  v.  Huff,  29  III.  449;  Har-  Jeans  v.  Wheedon,  2  M.  &  Hob.  486  ; 

vey   V.   Thorpe,    28    Ala.    250.      See  Brown  v.   Brown,   1    Sw.  &  Tr.  32 ; 

Thurston   r.    Slatford,    1    Salk.   285  ;  Johnson   i>.    Lyford,   L.  11.  1   P.  &  D. 

Macdousal  i\  Young,   Ry.  &  M.  392  ;  546  ;  Carpenter  v.  Dame,  10  Ind.  129. 

Doe  V.  Ross,  7  INI.  &  W.  106.  See,  however,  contra,  Dennis  r.  Bar- 

2  111.  Laud  Co.  V.  Bonner,  75  111.  ber,  6  Serg.  &  R.  420  ;  Steven.^on  v. 
315.  Hoy,    43    Penn.    St.    191;    111.    Cent. 

8  U.  S.  I'.  Britton,   2  Mason,  464.  Land  Co.  r.  Bonner,  75  111.  315;  Mer- 

*  New   York    Co.    v.    Richmond,  6  ritt  v.  Wright,  19  La.  R.  91  ;  Harvey 

Bosw.   213  ;  Livingston  v.  White,  30  v.  Thorpe,  28  Ala.  250  ;    and  infra. 

Barb.   72  ;    Higgins  v.  Reed,  8  Iowa,  §  135. 

298;  Edwards  v.  Edwards,  11   Rich.         °  Kenner  v.  Bank,  9    Wlieat.    582. 

(S.  C.)  537.  See  supra,  §  71. 
6  Sec  R.  V.  Wyldc,  6  C.  &  P.  380. 

Ill 


§  93.]  THE   LAW    OF   EVIDENCE.  [BOOK  I. 

§  91.  Whether  photogniphs  of  writings  may  in  any  view  be 

treated  as  primary  evidence  may  be  doubted,  and  it  is 
Photo-  ^  ,  '-  ^  -^  .    .      ,    .  .11--1 

graphic        clear   that  when   an  origmal  is  required,  the   original 

omiarV^''"    must  be  produced.     The  merits,  the  defects,  and  the 

evidence,     y.^j^j^  Qf  photographs  and  photographic  copies,  in  other 

relations,  will  be  hereafter  discussed.^ 

§  92.  A  printed  copy  of  a  manuscript  is  secondary  to  the  man- 

,„  .  ,  ,  uscript,  which  must  be  produced  or  accounted  for.^ 
All  printed  -t    '  ^  ^_ 

impres-        But  the  Several  printed  copies  produced  by  a  single  im- 

sions  are  .  .,,.. 

of  same  prcssioii,  and  issued  in  a  single  edition,  come  m  pan 
^^'^^  ^'  passu,  and  though  secondary  evidence  of  the  original, 
are  primary  as  to  each  other.^ 

§  93.  Strictly  speaking,  a  press  copy  is  secondary  to  the  origi- 
Press  nal  document  from  which  it  is  taken.^     Such  a  copy  is 

ondaiy^^'^"  receivable  on  the  loss  of  the  original.^  At  the  best, 
evidence,  however,  it  continues  secondary.  Hence  it  has  been 
held  that  a  copy  can  be  produced  from  a  press  copy  of  a  lost 
writing  without  producing  the  press  copy.^  But  though  a  press 
copy  is  thus  secondary,  it  may  be  used  as  a  means  of  determining 
the  itientity  and  genuineness  of  an  instrument.'^ 

1  See  infra,  §  6  76.  6  Goodrich  v.  Weston,   102   Mass. 

2  E.  V.  Watson,   32   How.   St.    Tr.     362,  cited  at  large,  supra,  §  72, 

82.     See  supra,  §  76.  "^  "The  court  admitted  press  or  ma- 

3  R.  V.  Ellicombe,  5  C.  &  P.  522  ;  chine  copies  of  certain  letters,  pur- 
E,.  V.  Kitson,  Pearce  &  D.  187;  R.  v.  porting  to  have  been  written  by  the 
Doran,  1  Esp.  129.  See  supra,  §§  71,  72.  defendant,    to    be    read   to  the   jury. 

*  Nodin  V.  Murray,  3  Camp.  228 ;  Tliese,  we  think,  were  competent  on 
Chapin  v.  Siger,  4  McL.  378  ;  Marsh  two  grounds.  Independently  of  proof 
V.  Hand,  35  Md.  123.  See  supra,  that  the  originals  were  in  the  hand- 
§§  71,  73,  74  ;  infra,  §  133.  See  writing  of  the  defendant,  the  copies 
Merritt  v.  Wright,  19  La.  An.  91.  were  admissible  as  documents  in  his 
"  The  fact  that  a  party  keeps  letter-  possession,  and  to  which  he  had  con- 
press  copies  of  letters  does  not  obvi-  stant  access.  They,  therefore,  fur- 
ate  the  necessity  of  producing  the  nished  room  for  the  inference  that  he 
originals,  or  of  laying  the  foundation  was  acquainted  with  their  contents, 
in  the  ordinary  and  usual  way  for  sec-  and  affected  him  with  an  implied  ad- 
ondary  evidence.  For  this  error  the  mission  of  the  statements  contained  in 
judgment  should  be  reversed,  and  a  them.  This  is  the  ordinary  rule  of 
new  trial  granted,  costs  to  abide  the  law  applicable  to  papers  found  in  the 
event."  Earl,  C,  Foot  r.  Bentley,  44  possession  of  a  party.  1  Greenl.  Ev. 
N.  Y.  171.      See  infra,  §  133.  §  198,  and   cases  cited.     Evidence  of 

^  Cameron  V.  Peck,  37  Conn.  555.  a  precisely  similar  character  was  ad- 

112 


CHAP.  III.] 


COPIES   OF   DOCUMENTS. 


(:§  94. 


§  94.  Examined  copies  are,  in  England,  resorted  to  as  the  most 
usiuil  mode  of  proving  records.     To  enable  such  a  copy    Examined 
to  be  read,  it  must  be  verified  by  a  witness,  who  will   Jj^^gt^e 
swear  that  he  has  compared  the  copy  tendered  with  the   compared, 
original,  either  directly,  or  through  a  person  employed  to  read 


mitted  without  objection  in  Common- 
wealth v.  Eastman,  1  Cush.  189,  195. 
Nor  are  we  able  now  to  see  any  valid 
reason  for  excluding  it.  But  upon 
another  and  distinct  ground  we  are  of 
opinion  that  the  evidence  was  admis- 
sible. The  press  copies,  as  they  were 
called,  were  in  fact  proved  to  have 
been  in  the  handwriting  of  the  defend- 
ant. They  were,  in  truth,  a  part  of 
the  original  letters  as  written  by  him, 
transferred  by  a  mechanical  pressure 
to  other  sheets.  But  such  transfer 
did  not  destroy  the  identity  of  the 
handwriting  as  shown  on  the  impres- 
sion, or  render  it  unrecognizable  by 
persons  acquainted  with  its  character- 
istics. These  to  a  considerable  extent 
it  must  necessarily  still  retain,  so  that 
a  person  having  adequate  knowledge 
could  testify  to  its  genuineness  with 
quite  as  much  accuracy  as  if  he  had 
before  him  the  original  sheets  on  which 
the  letters  were  first  written.  Writ- 
ings thus  transferred  are  not  unlike 
written  documents  which  have  been 
defaced  or  partially  obliterated  by  ex- 
posure to  dampness,  rough  usage,  or 
the  wasting  etlect  of  time.  Such  pa- 
pers may  not  possess  all  the  distinctive 
features  of  the  original  handwriting, 
but  their  i)artial  destruction  or  oblit- 
eration will  not  render  them  inadmis- 
sible as  evidence,  if  duly  identified  by 
testimony.  A  press  copy,  it  is  true, 
might  furnish  a  very  unsatisfactory 
standard  of  comparison  by  which  to 
determine  whether  another  paper,  the 
handwriting  of  which  was  in  contro- 
versy, was  written*  by  the  same  per- 
son, because  the  mechanical  process 

VOL.   I.  8 


to  which  it  had  been  subjected  in 
transferring  it  would,  by  spreading  the 
ink  and  blurring  the  letters,  necessa- 
rily somewhat  affect  its  general  re- 
semblance. For  this  reason  it  was  re- 
jected, when  offered  for  such  purpose, 
in  Commonwealth  v.  Eastman,  1  Cush. 
217.  But  although  incompetent  as  a 
means  of  comparison  by  which  to  judge 
of  the  characteristics  of  a  handwriting 
which  is  in  dispute,  it  might  still  re- 
tain enough  of  its  original  character  to 
be  identified  by  a  witness,  when  its 
own  genuineness  was  called  in  ques- 
tion. Such  in  effect  was  the  nature  of 
the  testimony  offered  at  the  trial,  al- 
though the  mode  of  putting  the  in- 
quiry to  the  witness  was  defective  and 
irregular.  Strictly,  he  should  have 
been  asked  if  the  letters  shown  to  him 
appeared  to  be  in  the  handwriting  of 
the  defendant;  then  by  proving  that 
they  were  press  copies,  it  would  follow 
that  the  letters  from  which  the  impres- 
sions were  made  were  his  also.  The 
defect  was  in  so  framing  the  question 
as  to  elicit  the  opinion  of  the  witness 
concerning  the  handwriting,  and  the 
necessary  consequence  of  that  opinion 
in  the  same  answer.  But  the  sub- 
stance of  the  evidence  was  clearly 
competent.  It  was  accompanieil  by 
pi'oof  of  due  effort  on  the  part  uf  the 
government  to  procure  and  produce 
the  original  letters,  and  was  thus 
brought  within  the  principle  and  rea- 
son of  the  rule  on  wliich  evidence,  in 
its  nature  secondary,  of  the  contents 
of  written  papers  is  held  to  be  admis- 
sible." Bigelow,  C.  J.,  Commonwealth 
i;.  JeflVies,  7  Allen,  5(>1. 

113 


§  95.]  THE   LAW   OF   EVIDENCE.  [rOOK  I. 

the  original.^  The  work  must  be  done  by  persons  who  under- 
stand the  characters  and  language  of  the  document.^  The  prac- 
tice in  making  such  copies  is  either  for  one  person  to  comjoare 
the  copy  line  for  line  with  the  original,  or,  what  is  in  one  respect 
more  accurate,  for  one  person,  after  the  copy  is  made,  to  read 
the  original,  and  the  other,  holding  the  copy,  to  mark  the  corre- 
spondence. In  such  case  it  has  been  held  not  enough  to  produce 
only  the  witness  who  held  the  copy,  since  he  only  knew  at  sec- 
ond hand  the  original.  The  better  course,  it  is  ruled,  is  either 
for  the  comparing  witnesses  to  change  hands,  so  that  the  listen- 
ing witness  might  in  his  turn  become  the  reading  witness,  or,  for 
either  of  the  two,  after  the  process  of  comparing,  to  read  the 
paper  with  the  original,  and  thus  to  qualify  himself  to  speak 
directly  as  to  accuracy.^  In  prior  cases  it  was  held  enough  to 
call  one  of  the  persons  engaged  in  the  comparing  process.'^  A 
copy  made  by  a  witness,  though  without  comparison,  is  undoubt- 
edly evidence  of  a  high  grade,  if  he  testifies  to  its  accuracy  ;  the 
more  cautious  course  is  to  add  comparison  by  another's  aid.^ 
The  copy,  to  be  admissible,  must  be  complete  ;  and  it  will  be 
excluded  if  it  give  abbreviations  of  that  which  in  the  original  is 
given  at  length.^  It  need  scarcely  be  added  that  the  record  copied 
must  be  shown  to  have  been  in  its  proper  office  when  copied.'^ 
§  95.  Exemplifications  of  the  record  of  a  court,  under  the  seal 

Exempli-      of  the  court,  are  not  in  England  common,  the  usual 
fications  of  ,  ... 

record  ad-    coursc  being,  when  the  issue  is  raised  as  to  the  exist- 
primary.      ence  of  a  rccord  which  does  not  belong  to  the  same 

^  McNeil  V.  Percbard,  1  Esp.  264;  ^  »  fhe  general  rule  of  the  law  upon 

Gyles  V.  Hill,  1  Camp.  471,  n. ;  Fyson  this  subject  requires  tbat  a  copy,  in 

V.  Kemp,  6  C.  &  P.  71 ;  Rolf  v.  Dart,  2  order  to  be  admitted  as  secondary  evi- 

Taunt.  51;  R.  v.  McDonald,  Arm.,  M.  dence,  should  be  proved  b}''  some  one 

&  O.  112;  Taylor's  Ev.  §  1389.  who  has  compai-ed  it  with  the  original. 

2  Crawford  Peerage  case,  2  H.  L.  1  Starkie  on  Ev.  270,  9th  Amer.  ed.; 

Cas.  544.  Kerns  v.  Swope,  2  Watts,  75."    Sbars- 

^  Slane  Peerage  case,  5  CI.  &  F.  wood,  J.,    McGinniss  v.   Sawyer,    63 

42.     See  Whitehouse  v.  Bickford,  29  Penn.  St.  267. 

N.  H.  471 ;  Catlin  u.  Underbill,  4  Mc-  ^  R.    v.    Christian,    C.   &  M.  388; 

Lean,    199;  Amer.   Life   Ins.    Co.    v.  Com.  v.  Trout,  76  Penn.  St.  379. 

Rosenagle,  77  Penn.  St.  507.  '  Adamtbwaite  v.  Synge,  1    Stark. 

*  Rolf  V.  Dart,  2  Taunt.  52;  Gyles  R.  183. 
V.  Hill,  1  Camp.  471,  note.    See  Best's 
Evidence,  §  486. 

114 


CHAP.  III.] 


COPIES    OF   DOCUMENTS. 


[§96. 


court,  to  obtain  an  exemplification  under  the  great  seal ;  which 
cumbrous  process  consists  in  the  removal  of  the  record  of  such 
other  court  into  the  court  of  chancery  ;  and  then  an  exempli- 
fication of  the  record  is  transmitted  by  mittimus  out  of  chan- 
cery to  the  court  where  the  trial  is  had,  and  in  which  proof  of 
the  record  is  needed. ^  A  record  must  be  certified  to  as  a  whole, 
and  not  in  loose  aud  detached  parts.^ 

§  96.  In  the  United  States,  the  practice,  so  far  as  concerns  the 
relations  of  the  particular  states,  was  fixed  by  the  Act 
of  Congress  of  May  26,  1790,  which  provides  that  S.  made  so 
"  the  records  and  judicial  proceedings  of  the  courts  of 
any  state  shall  be  proved  or  admitted  in  any  other  court  within 
the  United  States,  by  the  attestation  of  the  clerk,  together  with 
a  certificate  of  the  judge,  chief  justice,  or  presiding  magistrate, 
as  the  case  may  be,  that  the  said  attestation  is  in  due  form. 
And  the  said  records  and  judicial  proceedings,  authenticated  as 
aforesaid,  shall  have  such  faith  and  credit  given  to  them  in  every 
court  within  the  United  States,  as  they  have  by  law  or  usage  in 
the  courts  of  the  state  from  whence  the  said  records  are  or  shall 
be  taken."  ^ 


^  Ta}lor's  Evidence,  §  1380,  citing 
Winsor  c.  Uunford,  12  Q.  B.  6u3.  fcjee 
Dunluuu  V.  Chicago,  55  111.  357. 

The  mode  of  certifying  records  will 
be  hereafter  moi'e  fully  discussed.  See 
infra,  §  824  et  seq.  It  has  been  ruled 
iu  Massachusetts  that  where  a  certi- 
fied copy  of  a  record  is  partly  printed 
and  partly  written,  but  has  the  clerk's 
certificate  at  the  end  of  the  written 
part  only,  whether  the  certificate  ap- 
plies to  the  whole  roll  or  to  the  writ- 
ten part  alone  is  a  question  of  fact  to 
be  determined  by  examination  and 
inspection  of  the  papers.  Goodrich 
V.  Stevens,  116  Mass.  170.  "A  por- 
tion of  the  judgment  roll  ofJered  by 
the  plaintiff,"  said  Kndicott,  J.,  "  was 
printed,  and  a  portion  was  in  writing. 
The  only  objection  to  its  admission 
was,  that  the  certificate  of  the  clerk 
applied  to  the  written  part  only.  This 
is  a  matter  to  be  determined  by  exam- 


ination and  inspection  of  the  papers. 
No  question  of  law  is  involved  in  the 
decision,  and  it  is  apparent  that  the 
certificate  was  intended  to  and  does 
extend  to  the  whole  judgment  roll. 
The  ruling  of  the  presiding  judge  ad- 
mitting it  in  evidence  was  correct. 
Knapp  V.  Abell,  10  Allen,  485 ;  1 
Greenl.  Ev.  §§  504,  506."  Endicott, 
J.,  Goodrich  c.  Stevens,  116  Mass. 
170. 

2  Susquehanna  It.  R.  v.  Quick,  (if^ 
Penn.  St.  189.     See  infra,  §  821. 

*  See  as  'to  rulings  as  to  the  char- 
acter of  exemplifications  under  this 
statute,  infra,  §  824. 

As  to  foreign  records,  the  practice 
is  thus  stated:  "  We  are  of  the  opinion 
that  the  record  offered  in  evidence 
shoultl  have  been  received.  There 
can  be  no  ([uestion  of  its  competency. 
Strictly  speaking,  it  is  the  best,  and 
only   original,   evidence   of   the   facts 

115 


§  ^'7.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


§  97.  Although  by  the  terms  of  tlie  original  statute,  it  is  lim- 
ited to  state  courts,  it  is  extended,  by  the  Act  of  March  27, 1804, 

Williams,  6  Pick.  232  ;  Greenl.  on  Ev. 
and  notes,  before  cited."  Peters,  J., 
Sawyer  r.  Garcelon,  63  Me.  25. 

On  tlie  general  bearings  of  the  con- 
stitutional provision,  Tiiompson,  C.  J., 
in  the  supreme  court  of  Pennsylvania, 
thus  speaks:  "  The  Constitution  of  the 
United  States,  Art.  4,  §  1,  declares 
'  that  full  faith   and  credit  shall  be 


recited  in  it.  A  verified  copy  of  the 
record,  although  admissible,  is  still 
only  secondary  evidence.  Anciently, 
the  record  itself  was  offered  when  the 
cause  re(juiring  it  was  in  the  same 
court  where  the  record  was;  and  an 
exemplification  of  it  was  used  when 
the  cause  was  pending  elsewhere. 
Now,  however,  in  most,  if  not  all  of 


the  courts  in  this  country,  copies  of    given  in  each  state  to  the  public  acts, 


the  record  properly  authenticated  are 
received  as  sufficient  in  all  cases ;  a 
practice  said  to  be  established  either 
by  immemorial  usage  or  early  statutes 
to  that  effect.  Knox  v.  Silloway,  10 
Me.  201;  Vose  v.  Manly,  19  Me.  331; 
Brooks  V.  Daniels,  22  Pick.  498  ;  Day 
V.  Moore,  13  Gray,  522;  Ladd  v. 
Blunt,  4  Mass.  402 ;  Commonwealth 
V.  Phillips,  11  Pick.  28;  and  see  1 
Greenl.  on  Ev.  §  501,  and  notes.  So 
that  in  this  case  the  defendant  was 
entitled  to  put  in  evidence  either  the 
record  itself  or  a  copy  of  it,  at  his 
option. 

"  The  judge  presiding,  however, 
excluded  the  original  record,  under 
the  supposition  that,  if  admitted,  it 
must  go  to  the  jury  room  with  the 
papers  of  the  case.  This,  we  think, 
was  erroneous.  It  was  not  necessary 
that  the  jury  should  have  it.  They 
could  get  no  aid  from  an  inspection 
of  it  if  in  their  possession.  The  con- 
struction of  it  was  for  the  court. 
Where  a  domestic  record  is  put  in 
issue  it  is  to  be  tried  by  the  court,  not- 
withstanding it  is  a  question  of  fact. 
If  a  foreign  judgment,  the  issue  is  to 
be  tried  by  a  jury.  The  reason  is, 
that  the  court,  in  the  case  of  a  domes- 
tic judgment,  can  have  an  insjjection 
of  the  record  itself,  but  if  it  is  a  for- 
eign judgment  it  can  only  be  proved 
by  a  copy,  the  veracity  of  which  is  a 
question  of  fact  for  the  jury.     Hall  v. 

116 


records,  and  judicial  proceedings  of 
every  other  state,'  and  that  Congress 
may  prescribe  a  mode  of  authentica- 
tion of  such  records.  Accordingly  by 
Act  of  the  26th  of  May,  1790,  Con- 
gress prescribed  that  the  said  records 
and  judicial  proceedings  authenticated 
as  therein  directed,  '  shall  have  such 
faith  and  credit  given  them  in  every 
court  within  the  United  States,  as 
they  have  by  law  or  usage  in  the 
courts  from  whence  such  records  are 
or  shall  be  taken.' 

"Now  the  effect  of  the  record  of  the 
case  in  hand  being,  as  already  said, 
properly  authenticated  according  to 
the  act  of  Congress,  is  to  give  the 
same  conclusiveness  here  which  it  has 
in  the  State  of  New  York.  Without 
it  were  shown  that  the  court  which 
rendered  the  judgment  was  a  court  of 
special  or  limited  jurisdiction,  no  aver- 
ment can  be  made  against  the  conclu- 
siveness of  its  recoi'd.  This  is  not 
pretended.  We  are  therefore  bound 
to  regard  what  it  has  adjudicated 
upon  as  incapable  of  contradiction 
collaterally  here,  because  that  would 
be  the  effect  upon  the  record  there. 

"  The  judgment  roll  of  the  court  in 
New  York  recites  most  distinctly  that 
the  parties  were  personally  summoned, 
and  that  after  trial  and  verdict,  judg- 
ment was  entered  on  the  verdict 
against  them  for  the  amount  of  the 
verdict  and  costs.     This  recital  shows 


CHAP.  III.] 


COPIES   OF  DOCUMENTS. 


[§98. 


to  the  "  public  acts,  records,  office  books,  judicial  proceedings, 
courts,  and  officers  of  the  respective  territories  of  the  United 
States,  and  countries  subject  to  the  jurisdiction  of  the  United 
States,"  and  it  has  been  held  that  while  the  statute  is  not  for- 
mally applicable  to  the  federal  courts,  yet  exemplifications  of  the 
records  of  such  courts  will  be  regai'ded  as  admissible  when  the 
prescriptions  of  the  statute  are  followed.^  At  the  same  time  it 
must  be  remembered  that  records  of  a  federal  court,  certified  to 
by  the  clerk  of  the  court,  under  the  seal  of  the  court,  without 
the  certificate  of  the  chief  judge,  may  be  received  by  other  fed- 
eral courts.^  And  so  may  such  records  when  so  proved  in  state 
courts.^  That  a  record  is  certified  to  by  a  seal  of  court  is  evi- 
dence that  the  court  is  one  of  record.* 

§  98.  While  a  state  court  is  required  to  accept  an  ex- 
emplication  of  the  records  of  the  court  of  another  state, 
when  proved  in  conformity  with  the  Act  of  1790,  yet 
this  does  not  preclude  a  state  from  authorizing  records   proofs. 


Federal 
statute 
does  not 
exclude 
otlier 


conclusively  the  jurisdiction  of  the 
parties  in  that  suit,  of  which  the  de- 
fendant was  one ;  and  it  cannot  be 
contradicted  or  averred  against  in  an 
action  on  the  record  without  denying 


V.  Linah,  4  Harris,  241;  Hampton  v. 
McConnel,  3  Wheat.  234;  Mills  v. 
Duryee,  7  Cranch,  481 ;  Wosterwelt  v. 
Lewis,  2  McLean,  511 ;  2  Amcr.Lead. 
Cases,  774.     Neither,  therefore,  as  to 


the  effect  which,  by  the  Constitution     the  jurisdiction  of  the  person  nor  the 
and  act  of  Congress,  it  is  entitled  to     subject  matter  of  the  action,  was  the 

affidavit  effectual  to  raise  an  inquiry 
into  the  'judgment,  and  the  court  be- 
low very  properly  granted  judgment 
against  the  defendant  for  want  of 
sufficient  affidavit  of  defence."  Thomp- 
son, C.  J.,  Wetherill  v.  Stilhnan,  65 
Penn.  St.  114. 

1  Tooker  v.  Thompson,  3  IMcLean, 
94;  Buford  v.  Hickman,  Hemp.  232. 
See  Mason  v.  Lawrason,  1  Cr.  C.  C. 
190. 

^  Murray  v.  Marsh,  2  Hayw.  290  ; 
U.  S.  V.  Wood,  2  Wheel.  C.  C.  326  ; 
Redman  );.  Gould,  7  Blackf.  361,;  Wo- 
mack  ('.  Dearman,  7  Port.  513. 

8  Adams  v.  Way,  33  Conn.  419; 
English  V.  Smith,  26  Ind.  445. 
Though  see  Tappan  r.  Norvell,  3 
Sneed,  570. 

*  Smith  t-.  Redden,  5  Haning.  321. 

117 


have   conceded  to  it."     Wetherill  i'. 
Stilhnan,  65  Penn.  St.  114. 

"  As  to  the  jurisdiction  by  the  court 
in  New  York  of  the  cause  of  action, 
that  is  concluded  by  the  legal  maxim 
always  applicable  to  judicial  proceed- 
ings, '  Omnia  praesumunter  rite  esse 
acta.'  It  must  be  presumed  that  the 
court  has  exercised  jurisdiction  legal- 
ly ;  a  contrary  presumption  would  nec- 
essarily imply  usurpation  on  the  part 
of  th(!  court.  To  require  proof  of  ju- 
risdiction when  the  court  is  a  c^iu't  of 
general  jurisdiction,  would  be  to  coun- 
tenance the  idea  of  the  possibility  of 
usurpation  on  the  part  of  the  court, 
and  would  overthrow  at  once  the  con- 
servative maxim  alluded  to.  The  con- 
clusiveness of  such  records  as  this  is 
sustained  by  many  decisions.     Baxley 


§  9*J.] 


THE    LAW    OF    EVIDENCE. 


[book  I. 


of  other  states  to  be  received  in  evidence  upon  proof  of  less 
stringency,  or  by  common  law  proof.  The  act  does  not  say  that 
records  shall  only  be  received  upon  such  proof ;  it  merely  says 
that  when  verified  by  such  proof  they  shall  be  received. ^  A 
federal  court  sitting  in  a  particular  state  will  accept  the  proof 
prescribed  in  such  state  of  infra-territorial  records.^  And  it  has 
been  held  that  a  state  court  may  i-eceive"  records  of  federal  courts 
upon  an  ordinary  exemplification.-^ 

§  99.  Tlie  records  under  the  purview  of  this  statute,  it  has 
Onij-ex-  been  held,'*  are  those  of  courts  of  record,  in  the  com- 
courts^of  ^^'^on  law  sense  of  the  term  ;  and  do  not,  therefore,  in- 
recoid.  elude  the  proceedings  of  municipal  magistrates  or  jus- 
tices of  the  peace  who  keep  no  records  ;  ^  though  it  is  otherwise 
when  the  justice  of  the  peace  holds  a  court  of  record,  and  is 
obliged  by  statute  to  keep  a  record  of  his  proceedings  ;^  or 
when  his  proceedings  are  certified  by  him  to  the  county  court, 
and  there  verified  under  the  act  of  Congress.^  But  the  English 
conceit,  that  a  court  of  equity  is  not  a  court  of  record,  has  not 
been  accepted  by  us ;  and  hence,  the  proceedings  of  courts  of 
chancery,  as  well  as  of  orphans'  courts  and  courts  of  probate,  are 


1  State  V.  Stade,  1  D.  Chipm. 
303;  Eaynham  v.  Canton,  3  Pick. 
293;  Kingman  v.  Cowles,  103  Mass. 
283;  Pepoon  v.  Jenkins,  2  Johns.  Cas. 
119;  Biddis  v.  James,  6  Binn.  321; 
Ohio  V.  Hinchman,  3  Casey  (Penn.), 
485  ;  Povall,  ex  parte,  3  Leigh,  816; 
Ellmore  t;.  Mills,  1  Hayw.  359;  Eng- 
lish V.  Smith,  26  Ind.  445  ;  Railroad 
Bank  v.  Evans,  32  Iowa,  202;  Ord- 
way  V.  Conroe,  4  Wise.  45;  Hackett 
V.  Bonnell,  16  Wise.  471 ;  Lewis  v.  Sut- 
liff,  2  Greene  (Iowa),  186;  Parke  v. 
Williams,  7  Cal.  247;  Goodwyn  v. 
Goodwyn,  25  Ga.  203;  Karr  v.  Jack- 
son, 28  Mo.  317;  Pryor  v.  Moore,  8 
Tex.  250.  See  Porter  v.  Bevill,  2 
Fla.  528.  And  see,  on  general  ques- 
tion, Escott  V.  Mastin,  4  Moo.  P.  C. 
130  ;  Northam  v.  Latouche,  4  C.  & 
P.  140. 

118 


2  Mewster  v.  Spalding,  6  McLean, 
24. 

3  Womack  v.  Dearman,  7  Port.  513. 
*  See    Brightly's   Federal    Digest, 

265. 

s  Robinson  v.  Prescott,  4  N.  H. 
450 ;  and  see  Mahurin  v.  Bickford, 
6  N.  H.  567;  Warren  v.  Flagg,  2 
Pick.  448;  Thomas  v.  Robinson,  3 
Wend.  267;  Snyder  y.Wise,  10  Barr, 
157;  Silver  Lake  Bk.  v.  Harding,  5 
Ohio,  545;  Trader  v.  McKee,  2  111. 
558;  Gay  v.  Lloyd,  1  Green  (Iowa), 
78. 

^  Steirkweather  v.  Loomis,  2  Vt. 
573;  Blodget  v.  Jordan,  6  V"t.  580; 
Brown  v.  Edson,  23  Vt.  435 ;  Bissell 
V.  Edwards,  5  Day,  363;  Belton  t\ 
Fisher,  44  111.  32;  Draggoo  r.  Gi-a- 
ham,  9  Ind.  212. 

■^  Hade  v.  Brotherton,  3  Cranch  C. 
C.  594. 


CHAP.  III.]  COPIES   OF   DOCUMENTS.  [§  100. 

to  be  proved  as  the  act  of  Congress  prescribes.^  The  act,  it 
should  be  remembered,  does  not  authorize  exemphcations  of 
merely  private  writings,  though  filed  in  court.^  Nor  does  it  ex- 
tend to  judgments  of  the  courts  of  the  late  Confederate  States.^ 
It  covers,  however,  certificates  of  naturalization.'* 

§  100.  The  clerk,  who  under  the  act  is  to  attest  the  record, 
must  be  the  chief  clerk  of  the  court,  or  of  its  successor,    statute 
to  whom  the  care  of  its  records,  in  case  of  its  expira-    ^"iftiv*' 
tion,  is  committed.     The  certificate  of  an  under  clerk,    followed. 
or  of  a  deputy  or  substitute,  is  inadequate.^     When  the  offices 
of  judge  and  clerk  are  united  (as  in  the  case  of  surrogates),  the 
judge  acts  as  clerk  in  attesting  the  proceedings,  and   then  his 
certificate  as  judge  to  the  attestation  will  be  sufficient.*^    The 
appending  of  the  certificate  of  a  cumulative  clerk,  however,  does 
not  vitiate  the  exemplification.'^     When   there  is  no  seal  to  the 
court,  this  should  be  explained  in  the  certificate  of  either  clerk 
or  judge.^     If  there  be  a  seal,  it  must  be  attached  to  the  record  ; 
it  is  not  enough  to  attach  it  to  the  certificate.^     The  certificate 
must  be  by  the  "  chief  "  or  "  presiding  "  judge  of  the  court ;  it 
is  not  enough  if  it  should  issue  from  an  associate  judge, ^"^  nor  from 

1  Craig  V.  Brown,  Pet.  C.  C.  352 ;  MeH.  502  ;  Sampson  v.  Overton,  4 
Morgan  i'.  Curtenius,  4  McLean,  3G6  ;  Bibb,  409  ;  Donohoo  v.  Brannon,  10 
Hippie  V.  Ripple,  1  Rawle,  386  ;  Case  Overt.  328.  See,  however,  Stedmnn  v. 
V.  McGee,  8  Md.  9  ;  Settle  v.  Alison,  Patchin,  34  Barb.  218;  Ault  v.  Ze- 
8  Ga.  201  ;  Balfour  v.  Chew,  5  Mart,  hcring,  38  Ind.  429. 

N.    S.   517;    Johnson   v.    Rannels,    6  «  Catlin  v.  Underhill,   4   McLean, 

Mart.  N.  S.  G21 ;  Scott  r.  Blanchard,  199;    Ohio  v.   Hinchman,    27    Penn. 

8  Mart.  N.  S.  303  ;  Melvin  v.  Lyons,  St.  (3  Casey)  484  ;    Kooji    r.  Clark, 

18  Miss.  78;  Barbour  v.  Watts,  2  A.  4  Greene  (Iowa),  294;  Sally  v.  Gun- 

K.  Marsh.  290  ;  Hunt  V.  Lyle,  8  Yerg.  ter,   13  Rich.   72;    Cox  v.  Jones,    52 

142;  Patrick  I'.  Gibbs,  17  Tex.  275.  Ga.    438;    Pagett    v.  Curtis,   15    La. 

2  Warrenu.  Wade,  7  Jones  (N.C.),  An.  451;    Low   v.    Burrows,  12   Cal. 

494  ;  Russcl  v.  Kearney,  27  Ga.  96  ;     181. 

Carlisle  v.  Tuttle,  30  Ala.  613.  '  Weeks  v.  Downing,  30  Mich.  4. 

3  Steere  v.  Tcnney,  50  N.  IL  461  ;  «  Craig  v.  Brown,  Pet.  C.  C  353  ; 
Pennywit  r.  Kellogg,  1   Cincin.  17.  Cox  v.  Jones,  52  Ga.  438  ;  Strode  v. 

"  Caulfield  •  t'.   Bullock,  18  B.  Mon.  Churchill,  2  Litt.  (Ky.)  7.^. 

494.  9  Turner   v.  Waddington,    3  Wash. 

s  Morris  v.  Patchin,  24  N.  Y.  394  ;  C.  C.  120.     See,   however,  Simons  r. 

Lothrop  V.  Blake,  3  Penn.  St.  (3  Barr)  Cook,  29  Towa.  324. 

495  ;    Schnertzell  v.  Young,  3    H.  &  ^'^  Catliu  i'.   Underhill,  4   .McLean, 

110 


§  103.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

a  judge  presiding  at  a  particular  trial,  or  simply  "  senior,"  to 
others  j  ^  nor  from  a  judge  who  styles  himself  merely  "  judge  of 
the  probate  court."  ^  But  it  has  been  held  sufficient  where 
a  judge  in  his  certificate  states  that  he  is  one  of  the  judges  of 
the  court ;  that  all  the  judges  have  equal  authority,  and  that 
each  is  authorized  to  sign  a  certificate  of  a  record.^  Nor  is  it 
necessary  that  the  judge  should  be  styled  "  chief  judge,"  when 
by  the  laws  of  his  state  he  is  sole  judge  of  his  court.* 

§  101.  The  certificate  of  the  presiding  judge  must  state  that 
the  clerk  is  the  then  clerk  of  court,  and  that  his  attestation  is  in 
"  due  form,"  which  form  is  that  prescribed  by  the  law  of  the  state 
from  whence  the  record  comes.^  The  certificate  of  the  presid- 
ing judge  is  conclusive  as  to  the  "  due  form."*^  The  use  of  the 
words  "proper  form,"  however,  instead  of  "  due  form,"  has  been 
held  not  to  be  fatal. '^ 

§  102.  When  a  court  has  ceased  to  exist,  and  its  records  have 
been  transferred  to  another  court,  then  the  presiding  judge  and 
clerk  of  the  latter  court  must  certify.^ 

§  103.  If  the  certificate  is  in  this  respect  complete,  a  record 
will  not  be  rejected,  because  of  omissions  or  excesses  in  matters 

199;    Stewart   v.    Gray,   Hemp.    94;  479;    Central   Bank    v.    Veasey,    14 

Van   Storch  i-.   GrifHn,   71   Penn.   St.  Ark.  672. 

240.;  Pratt  v.  King,    1    Oregon,   49;  6  Trigg    v.    Conway,    Hemp.    538; 

Settle  17.  Allison,  8  Ga.  201;  Hudson  Craig    v.    Brown,    Pet.    C.    C.   354; 

V.   Daily,     13     Ala.     722;    Brown  v.  Hutchins  v.   Gerrish,  52   N.  H.   205; 

Johnson,  42  Ala.  208.     See  Norwood  Johnson  v.  Howe,  2   Stew.  (Ala.)  27; 

V.  Cobb,  20  Tex.  588.  Duvall  v.  Ellis,  13  Mo.  203;  Wilburn 

1  Lothrop   V.  Blake,   3    Barr,  495;  v.  Hall,  16  Mo.  426. 

Stephenson  v.  Bannister,  3  Bibb,  369;         6  Fergusons.  Harwood,  7  Cr.  408 

Kirkland  v.  Smith,  2  Mart.  La.  (N.  S.)  Tooker  v.  Thompson,  3  McLean,  93 

497.     See,  however,  Taylor  r.  Kilgore,  Taylor  v.  Carpenter,  2  Wood.  &  M, 

33  Ala.  214.  4;  Thompson  v.  Manrow,  1  Cal.  428 

2  Washabaugh     v.     Entriken,     34  Hutchinson    v.    Patrick,    3  Mo.    45 
Penn.  St.  74.  Grover  v.  Grover,  30  Mo.  400;  Schoon- 

3  Orman   v.   Neville,    14    La.    An.  maker  v.  Lloyd,  9  Kich.  1*73. 

392.     See  Arnolds.  Frazier,  5  Strobh.         ^  White  v.  Strother,  11  Ala.  720. 
33  ;    McKenny  v.    Gordon,    13  Rich.         «  Capen  r.  Emery,  5  Mete.  (Mass.) 

S.  C.  40  ;  Johnson  v.  Howe,  2   Stew.  436  ;  Manning  v.  Hogan,  26  Mo.  570  ; 

(Ala.)  27;  Bates  r.  Mc Cully,  27  Miss.  Young  v.   Thayer,  1   Greene  (Iowa), 

684.  196;    Darrah    v.    Watson,    36    Iowa, 

*  State  V.  Hinchman,  27  Penn.  St.  116. 
120 


CHAP.  III.]  COPIES    OF   DOCUMENTS.  [§  105. 

irrelevant.^     A  copy  of  a  lost  record  may  be  certified  under  tbe 
act  of  Congress.^ 

§  104.  An  office  copy  of  a  record,  is  a  copy  made  by  an  officer 
duly  authorized  for  the  purpose  either  by  rule  of  court   q^^^ 
or  by  statute.    Such  copy,  when  the  officer  is  authorized   a<}"ii«ed 

•^  ...  .  .  when  au- 

only  by  rule  of  court,  is  admissible  as  eyidence  in  the    thorized 

,    .         '  1      .        .  bylaw. 

same  court  and  in  the  same  cause  ;  but,  at  common 
law,  the  copy  must  be  proved  to  be  correct,  if  it  be  produced, 
either  in  another  court,  or  even  in  the  same  court  in  another 
cause.3  Even  where  an  action  was  brought  in  the  queen's  bench 
against  a  sheriff  for  a  false  return  to  a  writ  of  fieri  facias^  the 
court  refused  to  permit  the  plaintiff  to  put  in  office  copies  of 
the  writ  and  of  the  return,  though  the  original  cause  was  in  the 
same  court.^  Where,  however,  an  officer  is  bound,  either  at 
common  law  or  b}^  statute,  to  furnish  copies,  these  copies  will 
"  generally  be  admitted  in  all  courts  alike."  ^  In  England,  by 
the  acts  of  12  &  13  Vict.  c.  109,  records  and  documents  belong- 
ing to  the  common  law  side  of  chancery  can  be  thus  proved, 
and  this  convenience  has  been  subsequently  extended  to  other 
records.^ 

§  105.  In  the  United  States  the  distinction  between  "  office 
copies"  and  "  exemplications,"  as  existing  in  England,  practice in- 
is  not  recognized  in  practice  ;  the  reason  being  that  of  ^fe,\eraf 
there  are  but  few  cases  in  which  there  is  not  some  statute, 
officer  appointed  by  law  to  give  certified  copies  which  shall  be 
generally  admissible.  The  federal  statute  of  1790  prescribes, 
as  we  have  seen,  a  specific  form  of  verification  on  which  judg- 
ments in  one  state  shall  be  received  in  evidence  in  another ;  and 
even  in  those  cases  to  which  this  act  does  not  apply,  it  has  been 

1  Knapp  V.  Abell,  10  Allen,  485;  8  Den  i'.  Fulford,  2  Burr.  1179; 
Gavit  V.  Snowhill,  26  N.  J.  L.  7G  ;  Jack  v.  Kicrnan,  2  Jcbb  &  Sy.  231  ; 
Clark  t'.  Depew,  25  Penn.  St.  509;  Barron  v.  Daniel,  Cr.  &  1).  Abr.  C 
McCoriniek  v.  Deaver,  22  IMd.   187;  283. 

Duconiniun  v.  Ilysinger,   14  111.  249;  *  Pitcher   v.    King,     1    C.    &     Kir- 
Young  V.  Chandler,  13   B.  Mon.  252;  655. 

Shown    V.  Barr^  11    Ircd.   (L.)    296;  ^  Taylor's  Ev.  §  1384;  citing  Bhuk 

West  Felic.  R.  R.  v.  Thornton,  12  La.  v.  Ld.  Braybrooke,  2  Stark.  U  12-1  1  ; 

An.  736.  Applcton  v.  Lord  Braybrooke,  6  M. 

2  Robinson  v.   Simons,  7  Pliila.  R.  &  Sel.  37. 

127.  8  Taylor's  Ev.  §  1385  el  seq. 

121 


§  107.] 


THE  LAW   OF  EVIDENCE. 


[book  I. 


regarded  as  giving  tests  a  compliance  with  which  secures  admis- 
sibility.-' But  the  act,  as  wc  have  also  seen,^  does  not  provide 
that  no  record  shall  be  admitted  except  on  the  proof  specified  ; 
and  not  only  have  the  courts  of  several  states  held  that  records 
could  bo  proved  at  common  law  by  processes  less  stringent,  but 
in  almost  every  state,  statutes  have  been  passed  facilitating  such 
proof.^  These  statutes  place  foreign  records  in  a  measure  on  the 
same  footing  as  domestic,  and  as  therefore  more  or  less  subject 
to  rules  we  will  proceed  now  to  notice. 

§  106.  A  court  of  record  takes  judicial  notice  of  its  own  rec- 
ords; and  when  on  a  pending  trial  the  records  of  such 
court  are  relevant,  they  may  be  admitted  without 
further  proof  than  is  given  by  their  production  by  the 
clerk  from  the  proper  archives.*  It  has  been  even  held, 
that  the  original  papers  in  an  inferior  court  may  be 
received  in  evidence  in  a  superior  court.^  But  the 
genuineness  of  the  paper  must  be  proved  as  a  prerequisite  to 
its  reception.^ 

§  107.  So  far  as  concerns  tiie  courts  of  the  same  state,  it  is 
generally  held  that  a  copy,  certified  to  be  correct  by  the 
clerk  or  proper  officer  of  the  court  where  the  record  is 
deposited,  will  be  received  in  evidence  as  primd  facie 
proof  of  the  record  ;  nor  is  it  necessary  that  the  certifi- 
cate of  the  judge  should  be  appended.'^     The  same  decision  has 


Original 
records  of 
court  in 
which  suit 
is  pending 
are  evi- 
dence in 
such  court. 


Office 
copies  ad- 
missible 
in  same 
state. 


1  See  supra,  §  97. 

2  Supra,  §  98. 

^  See  Ivingman  v.  Cowles,  103 
Mass.  283 ;  Lansing  v.  Russell,  3 
Barb.  325. 

*  Odiorne   v.   Bacon,  6  Cusli.  185 
Betts  V.  New  Hartford,  25  Conn.  180 
Burk  V.  Tregg,  2  Wash.   (Va.)    215 
Sutcliffe  V.  State,  18  Ohio,  469;  Pres- 
cott  V.  Fisher,  22  111.   390  ;  Harrison 
V.   Kramer,    3    Iowa,    543;    Ward   v. 
Saunders,    6    Ired.    L.   382;   Peck  v. 
Land,  2   Ga.   1 ;    Adams  v.  State,  1 1 
Ark.  466  ;  Wallis  v.   Beauchamp,    15 
Tex.   203  ;  Larco    v.   Casaneuava,  30 
Cal.  560;  Sharp  v.  Lumley,  34  Cal. 
611. 

6  State   V.   Bartlett,   47   Me.    396 ; 

122 


Odiorne  v.  Bacon,  6  Gush.  185  ;  Hart 
V.  Stone,  30  Gonn.  94 ;  Sherrerd  v. 
Frazer,  6  Minn.  572;  Williams  v. 
Brummel,  4  Ark.  129;  Herndon  v. 
Gasiano,  7  Tex.  322. 

6  Perry  v.  May,  1  Hill  S.  G.  76. 

■^  State  V.  Bartlett,  47  Me.  396 ; 
Jay  V.  East  Livermore,  56  Me.  107  ; 
Ladd  V.  Blunt,  4  Mass.  402  ;  Gom.  v. 
Phillips,  11  Pick.  28;  Odiorne  v.  Ba- 
con, 6  Gush.  185  ;  Hart  i'.  Stone,  30 
Gonn.  94  ;  Osborn  v.  State,  7  Ohio 
(Part  I.),  212  ;  Steel  v.  Pope,  6  Blackf. 
176;  Jenkins  v.  Parkhill,  25  Ind.  473 
Anonymous,  1  Brev.  (S.  G.)  173 
McGollum  V.  Herbert,  13  Ala.  282 
Winters  v.  Laird,  27  Tex.  616. 


CHAP.  III.]  COPIES   OF   DOCUMENTS.  [§  108. 

been  reached  where  the  cop}^  and  the  certificate  is  by  the  judge 
and  not  the  clerk  of  the  court. ^  But  the  certificate  to  the  verity 
of  the  transcript  must  be  explicit.'-^  When  the  whole  record  is 
put  in  evidence,  this  carries  with  it  all  the  entries  and  indorse- 
ments on  the  writs  or  other  papers  of  which  the  record  is  com- 
posed.^ 

§  108.  Nor  is  this  indulgence  restricted  to  copies  of  judicial 
records.     Public  records  in  general,   when  under  the    ^, .      , 

°  '  ...        This  rule 

charge  of  duly  qualified  public  officers,   acting  within;  extended 
the  range  oi  then-  duties,  are  jyi'ima  jacie  correct,  and    records 
may  in  many  cases  be  brought  into,  court,  when  within    ^®"^''''  ^' 
the  jurisdiction,  by  a  subpoena  duces  tecum.     But  in  some  cases 
the  privilege  of  the  custodian  may  prevent  this ;  in  others,  the 
removal  of  the  originals  from  their  proper  archives  may  be  pro- 
ductive of  great  public  inconvenience.     In  such  cases  there  is  a 
growing  tendency,  even  at  common  law,  to  permit  the  records 
to  be  represented  by  exemplifications  or  by  other  authenticated 
copies.^     The  document,  however,  must  be  of  a  character  tech- 
nically public.^     Thus  it  has  been  held  by  the  court  of  claims 
that  a  receipt  for  property  captured,  procured  from  a  military 
governor  by  a  claimant,  is  not  such  a  public  document  that  an 
exeuijjlification  of  it  can  be  put  in  evidence ;  but  that  the  orig- 
inal must  be  produced.'^ 

1  Brackett  v.  Hoitt,  20  N.  II.  257.  ejectment,  gave  in  evidence  a  certified 

^  Lyon  V.  Boiling,  14  Ala.  753.  copy  of  a  petition   in   bankruptcy,  a 

3  Lothrop    %u    Blake,    3    Penn.    St.  certificate  of  the  bankrupt's  discharge, 

483.  and  a  deed  from  the  bankrupt's   al- 

•*  See  cases  cited  infra,  §  114  ;  and  leged  assignee.     It   was  held   by   the 

see  U.  S.  V.  Gaussen,   10  Wall.  198;  supreme   court  of    Pennsylvania    (af- 

Whiton   V.    Ins.    Co.     109    Mass.    24  ;  firming  the  judgment  of  the  court  be- 

Thompson  v.  R.  R.  22  N.  J.  Eq.  Ill  ;  low),  that  there  was  no  evidence  of 

Dunham    v.    Chicago,     55    111.    359;  the  appointment  of  the  assignee,  and 

Bellows  V.  Todd,  34  Iowa,  18  ;  Allen  without  this   the   plaintiff  could    not 

V.  Hoxey,  37   Tex.  320.     See  supra,  recover. 

§  82;  infra,  §§  114,  127.  On  the  general  question  of  the  ad- 

5  See  infra,  §  127.  missihility  of  records,  Mr.  Taylor  (§ 

6  Block  V.   U.   S.   7  Ct.   of  Claims,  137!i)  thus  speaks:  — 

406.     As  to  exemplification  of  bank-  "  One  or  other  of  these  copies  will 

ruptcy  records,  see  Michener  v.  Pay-  always  be    admissible    in    lieu  of  the 

son,    U.    S.    Cir.     Court,  -2     Weekly  original  rtrwn/,  excepting  in /k-o  ca.<M; 

Notes  of  Cases,   339.     In    Alexander  first,  if  issue  has  been  joined  on  a  pica 

V.  McCu Hough,    1    Weekly  Notes  of  or   replication   of   nul  tiel    record,   in 

Cases,  the  plaintiff,  in    an    action  of  some  cause  in  a  court  to  which    the 

123 


§  110.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


§  109.  The  seal  of  a  court  of  record  is  an  essential  to  the  at- 
Secai  of  testation  of  the  court  of  the  accuracy  of  copies  from  its 
sendaHo  records. ^  The  seal  proves  itself. ^  In  Massacliusetts, 
copy-  however,  the  usage,  sanctioned  by  the  courts,  has  been 

for  the  clerk  of  the  court  to  attest  a  copy  without  attaching  the 
seal  of  the  court.^  And  in  England,  an  ancient  exemplification 
has  been  received  without  a  seal.* 

§  110.  By  Lord  Brougham's  Evidence  Act  of  1851,  foreign 
judicial  records  may  be  proved  by  examined  copies, 
sealed  with  the  seal  of  the  proper  court,  or,  if  there  be 
no  seal,  signed  and  certified  to  by  the  jndge,  who  must 
also  certify  to  the  fact  of  there  being  no  seal.^  In  this 
country  we  have  several  local  statutes  to  the  same  effect 
At  common  law,  it  has  been  held  suflEicient  if  an  exemplification 

R.  V.  Spencer,  1  C.  &  P.  260,  per  Ab- 
bott, C.  J. ;  R.  V.  Turner,  2  C.  &  Kir. 
732,  per  Erie,  C.  J.  For  the  purpose 
of  insuring  the  production  of  the  orig- 
inal record,  application  should  be  made 
to  the  court  to  which  it  belongs,  or  to 


Exempli- 
fication of 
foreign 
records  to 
be  proved 
by  seal  or 
by  parol. 


disputed  record  belongs ;  2  Ph.  Ev. 
129  ;  and  secondly,  if  a  person  is  in- 
dicted for  perjury  in  any  affidavit, 
deposition,  or  answer,  or  for  forgery 
with  respect  to  any  record.  B.  N.  B. 
239  ;  R.  V.  Morris,  2  Burr.  1189  ;  R. 
V.  Benson,  2  Camp.  508 ;  R.  v.  Spen- 
cer, Ry.  &  M.  9  7  ;  Crook  v.  Dowling, 
3  Doug.  77;  Stratford  v.  Greene,  2 
Ball  &  B.  296  ;  Garvin  v.  Carroll,  10 
Ir.  Law  R.  330;  per  Crompton,  J.; 
Lady  Dartmouth  v.  Roberts,  16  East, 
340,  per  Lord  Ellenboiough  and  Le 
Blanc,  J.  In  this  last  case  the  judges 
intimated  an  opinion  that  the  same 
strictness  was  necessary  in  actions  for 
malicious  prosecution  ;  but  this  would 
seem  to  be  a  mistake.  See  B.  N.  P. 
13  ;  Purcell  v.  McNamara,  1  Camp. 
200.  In  either  of  these  cases  the  orig- 
inal document,  unless  it  be  shown  that 
the  prisoner  has  got  possession  of  it, 
or  that  it  has  been  lost  or  destroyed, 
must  be  actually  produced.  R.  v. 
Milnes,  2  Fost.  &  Fin.  10,  per  Hill,  J. 
On  a  trial,  too,  for  perjury,  the  sig- 
natures of  the  defendant,  and  of  the 
person  whose  name  is  attached  to  the 
jurat,  must  be  pi'oved  (see  note  supra) ; 
after  which  the  court  will  presume 
that  the  oath  was  duly  administered. 

124 


a  judge  in  vacation,  who  will  make 
the  necessary  order.  Crook  v.  Dow- 
ling, 3  Doug.  77,  per  Lord  Mansfield  ; 
Bastard  v.  Smith,  10  A.  &  E.  214  ; 
Bentall  v.  Sydney,  lb.  164.  The  ap- 
plication to  the  court  of  chancery,  for 
leave  to  take  an  answer  off  the  file,  in 
order  to  prosecute  the  defendant  for 
perjury,  will  be  granted  as  a  matter 
of  right.  Stratford  v.  Greene,  1  Ball 
&  B.  294  ;  Keenan  v.  Boylan,  1  Sch. 
&  Lef.  232." 

^  Turner  i'.  Waddington,  3  Wash. 
C.  C.  126  ;  Hinton  v.  Brown,  1  Blackf. 
429;  Thomasson  v.  Driskell,  13  Ga. 
253;  Thames  v.  Erskine,  7  Mo.  213. 

2  Infra,  §§  318-321,  695;  Smith  v. 
Redden,  5  Harring.  321.  See  God- 
bold  V.  Bank,  4  Ala.  516  ;  McLein  v. 
Smith,  17  Mo.  49. 

3  Chamberlin  v.  Ball,  15  Gray, 
352. 

4  Beverley  v.  Craven,  2  M.  &  Rob. 
140. 

5  Taylor's  Evidence,  §  1398. 


CHAP.  III.]  COPIES   OF   DOCUMENTS.  [§  111. 

of  a  foreign  record  is  certified  to  by  the  clerk  and  tlie  presid- 
ing judge,  with  a  certificate  under  the  great  seal  of  the  state  of 
the'  official  character  of  the  judge.^  It  has  also  been  ruled  that 
sworn  copies,  proved  by  the  copyist  himself,  will  be  received, 
when  attested  by  the  seal  of  the  clerk.^  A  certificate  from  a  sec- 
retary of  foreign  affairs  has  been  held  sufficient  to  authenticate 
the  proceedings  of  a  foreign  court.^  But  a  consular  certificate 
is  not  sufficient  to  authenticate  the  copy  of  a  record  of  a  foreign 
court  of  admiralty.  The  seal  must  be  proved  by  a  witness  to 
whom  it  is  familiar.^  It  has  been  held  that  an  exemplification 
may  be  admitted  on  proof  by  an  expert  of  the  genuineness  of  the 
seal  of  the  court  and  of  the  signature  of  the  judge  ;^  and,  when 
the  court  has  no  seal,  by  proof  of  the  handwriting  of  the  clerk, 
and  of  the  regularity  of  the  exemplification.^  It  has  even  been 
held  that  the  exemplication  of  the  record  of  a  foreign  court,  ad- 
mitted to  have  common  law  jurisdiction,  may  be  proved  by  the 
signature  of  the  clerk  verified  by  the  seal  of  the  court." 

§  111.   Ordinarily,  when  a  statute  authorizes  the  recording  of 
deeds  or  other  instruments,  the  book  in  which  the  regis-    ,>    .  ,      , 

'  _     _  "  _       Registry  of 

try  is  made  is  by  the  statute  made  admissible  as  evi-   deed  :ui- 
dence.^     Where  it  is  not  made  so  admissible,  then,  in 
order  to  enable  such  book  to  be  put  in  evidence,  the  usual  foun- 
dation accounting  for  the  non-production  of  the  original  must  be 
laid.^     Whether  the  book  of  the  registry  of  a  deed  is  primary 
evidence  dejDends,  as  has  been  just  stated,  upon  the  terms  of  tlie 


1  Watson  V.  Walker,  23  N.  H.471  ;  Ilubbart,  2  Cranch,  187.  Sec  infra, 
Spaulding   v.   Vincent,    24    Vt.    501;  §119. 

Griswold    (;.    Pitcairn,    2    Conn.    85  ;         *  Catlett  v.  Ins.  Co.  1   Paine,  b^\. 
Thompson  v.   Stewart,   3  Conn.  171;         ^  Owings  f.  Nicholson,  4  liar.  &  J. 

Iladfield    v.    Janiieson,    2    INIunf.    53;  CG. 
Stewart  v.  Swanzy,  23  Miss.  502.  ^   Packard  v.  Hill,  7  Cow.  434. 

2  Pickard  v.  Bailey,  26  N.  II.  152  ;  ^  Lazier  v.  Westcott.  2(1  N.  Y.  14(!; 
IJuttrick  V.  Allen,  8  Mass.  273  ;  Spaul-  Capling  r.  Herman,  17  Mich.  524; 
ding  V.  Vincent,  24  Vt.  501  ;  Delalicld  though  see  Vandcrvoort  c.  Smith,  2 
V.  Hand,  3  Johns.  R.   310;  Stewart  v.  Caincs,  154. 

Swanzy,  23  Miss.  502.    /  »  Dick  i-.  Balch,  8  Pet.  30  ;  Tliomas 

8  Stanglein  v.  State,  17  Oh.  St.  453;  v.  Magruder,  4  Cranch  C.  C.  44(;. 
U.  S.y.  Wiggins,  14  Pet.  334;  U.  S.y.         »  Den   v.  Cuslin,   12   N.  J.   L.  42; 

Rodman,  15   Pet.  130:  Stein  v.  Row-  Ru<-ker   v.   McNcely,  5    Rlackf.   123; 

man,  13  Pet.  209.     But  see  Church  r.  IVck    r.   Clark,    18    Tex.    239.      See 

Reinboth  v.  Zerbe,  29  Penu.  St.  139. 

125 


§  114.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

statute.^  Where  the  book  is  not  made  evidence  by  statute,  then 
it  can  only  be  received  without  due  explanation  of  the  non-pro- 
duction of  the  original. 2  In  any  view  the  registry  is  only  primd 
facie  proof  of  the  authenticity  of  the  original.^ 

§  112.  In  England  the  memorial  of  a  registered  conveyance 
is  inadmissible  as  primary  evidence  against  third  jDersons  to  prove 
the  contents  of  the  deed  ;  *  although  against  the  party  by  whom 
the  deed  is  registered,  and  those  who  claim  under  him,  it  can 
certainly  be  received  as  secondary,^  if  not  as  primary,^  evidence, 
being  considered  in  the  light  of  an  admission.^  So  an  examined 
copy  of  the  registry  has  been  received  as  secondary  evidence  of 
the  contents  of  an  indenture,  not  only  as  against  parties  to  the 
deed,  who  have  had  no  part  in  registering  it,  but  also  as 
against  third  persons  ;  but,  in  all  these  cases,  the  evidence  has 
been  admitted  under  special  circumstances :  as,  for  instance, 
where  parties  have  been  acting  for  a  long  period  in  obedience  to 
the  provisions  of  the  supposed  instrument,  or  where  the  deed  has 
been  recited  or  referred  to  in  other  documents  admissible  in  the 
cause.^  In  any  view  the  enrolment  of  a  lease  granted  by  the 
crown  is  primary  evidence,  because  the  possessions  of  the  crown 
cannot  be  alienated  but  by  matter  of  record.^ 

§  113.  It  is  elsewhere  noticed  that  an  ancient  deed,  when  ac- 
.     .  companied  with  thirty  years'  possession,  is  admissible 

registries      without  proof  of  executiou.^*^     The  same  indulgence  is 

admissible  .  .        .  . 

without        extended  to  ancient  registries,  so  as  to  cure  irregular- 
^^^°  '  ity  of  authentication,!!  and  to  ancient  maps,  establishing 

boundaries.!^ 

§  114.  It  has  been  already  observed  that  entries  in  a  public 

1  See  also  Van  Cortlandt  v.  Tozer,  "^  Wollastoii  v.  Hakewill,  3  M.  & 
17  Wend.  338;  S.  C.  20  Wend.  423.  Gr.  297. 

2  Den  V.  Gustin,  12  N.  J.  L.  42;  8  ggg  Sadler  v.  Biggs,  4  H.  of  L. 
Peck  v.  Clark,  18  Tex.  239.  See  infra,  Cas.  435;  Peyton  v.  McDermott,  1 
§  130  et  seq.  Dru.  &  W.  198;  Collins  v.   Maule,  8 

3  Morris  v.  Keyes,  1   Hill  (N.  Y.),  C.  &  P.  502. 

540.  9  Rowe  V.  Brenton,  8  B.  &  C.  755. 

4  Molton   V.    Harris,    2    Esp.   549  ;         lo  See  infra,  §  703. 

Taylor's  Ev.  §  389,  from  which   this  "  llust  v.  Boston  Mill  Co.  6  Pick, 

section  is  derived.  158;    King   v.    Little,    1    Cush.   436; 

6  Doe  V.  Clifford,  2  C.  &  Kir.  448.  Adams  v.  Stanyan,  24  N.  H.  405. 

«  Boulter  v.  Peplow,  9  C.  B.  502.  ^^  Adams  i'.  Stanyan,  24  N.  H.  405. 


See  infra,  §§  194,  703. 


126 


CHAP.  III.] 


COPIES   OF  DOCUMENTS. 


[§  114. 


register  can  be  proved  by  putting  in  evidence  the  register  itself, 

after  first  proving  from  whence  it  came.    Such  a  mode  of   c^joge^ 

proof,  however,  is  productive  of  so  much  collateral  incon-   copy  of 

..!.<.  ,1.  c  •  onicial  reg- 

venience,  in  withdrawing  from  the  public  use,  from  time    ister  re- 

to  time,  books  of  such  high  importance,  exposing  them 
to  injury  and  dilapidation,  that,  independently  of  the  statutes 
which  have  been  enacted  for  this  purpose,  it  has  been  frequently 
held  admissible  to  prove  their  contents  by  exemplifications  or  cer- 
tified copies.^  The  originals,  however,  must  be  in  some  sense 
records.  Thus  it  has  been  held  by  the  court  of  claims  that  copies, 
certified  by  the  secretary  of  the  treasury,  of  portions  of  the 
"  archives  of  the  late  so-called  Confederate  government,"  are  in- 
admissible, but  that  the  originals  should  be  produced.^ 


1  Supra,  §108;  infra,  §  127.  See 
Lord  Abinger  in  Mortimer  v.  McCal- 
lan,  6  M.  &  W.  67;  Taylor's  Ev.  § 
143G  ;  and  see,  also,  Lynch  v.  Gierke, 
3  Salk.  154;  2  Doug.  593;  R,  v. 
Hains,  Comb.  337  ;  Hoe  v.  Nathrop,  1 
Ld.  Ray.  154. 

In  England  this  is  effected  by  Lord 
Brougham's  Evidence  Act  of  1851  ; 
Taylor's  Ev.  §  1437  et  seq.  But  as 
common  law  autliorities  to  the  same 
effect,  see  cases  above  cited,  and  also 
Bingham  r.  Cabbot,  3  Dal.  19  ;  U.  S. 
V.  Johns.  4  Dal.  412;  U.  S.  v.  Acosta, 
17  Pet.  16;  1  How.  24;  U.  S.  v.  Cor- 
win,  1  Bond,  149;  U.  S.  v.  Gaussen, 
19  Wall.  198;  Hodgdon  v.  Wight,  3G 
Me.  326  ;  Eastport  v.  East  Machias,  35 
Me.  402;  Jay  v.  Carthage,  48  Me.  353  ; 
Willey  V.  Portsmouth,  35  N.  PL  303  ; 
Abington  v.  Bridgewater,  23  Pick.  1 70; 
Whiten  V.  Ins.  Co.  109  Mass.  24;  Gray 
V.  Davis,  27  Conn.  44  7;  Thompson  o. 
R.  R.  22  N.  J.  Eq.  Ill;  Ilyam  v. 
Edwards,  1  Dall.  2  ;  Rhodes  v.  Sei- 
bert,  2  Penn.  St.  18  ;  Vail  v.  MoKer- 
nan,  21  Ind.  421 ;  Lane  v.  Bommel- 
man,  17  111.  95;  Leo  v.  Getty,  26  111. 
76;  Dunham  v.  Chicago,  55  111.  35  7; 
Bellows  V.  Todd,  34  Iowa,  18;  Fain  v. 
Garthright,  5  Ga.  6;  Brakobill  r. 
Leonard,  40  Ga.  60;  Hall  v.  Acklcn, 


9  La.  An.  219  ;  Davis  v.  Freeland,  32 
Miss.  645  ;  St.  Louis  Ins.  Co.  v.  Cohen, 
9  Mo.  421;  Barton  v.  Murrain,  27  Mo. 
235;  Hurlbutt  u.  Butenop,  27  Cal.  50. 
See,  however,  Chouteau  v.  ChevaHer, 
1  Mo.  343. 

2  Schaben  v.  U.  S.  6  Ct.  of  CI.  230. 
See  Steere  v.  Tenney,  50  N.  H.  461 ; 
Pennywit  v.  Kellogg,  1  Cincin.  17. 

The  method  of  exemplifying  public 
records  under  the  federal  statutes  is 
thus  accurately  stated  :  — 

"  The  mode  of  authenticating  doc- 
uments of  the  departments  of  the 
United  States  is  governed  by  the 
laws  of  the  United  States  and  the 
practice  of  such  departments,  and  not 
by  the  statutes  of  the  states.  Gilman 
V.  Riopelle,  18  Mich.  145.  By  the  Act 
of  Congress  of  the  15th  of  Sejjtcra- 
ber,  1789,  all  copies  of  records  and 
papers  in  the  ollice  of  the  secretary 
of  state,  authenticated  under  the  seal 
of  his  office,  are  made  conipeteut  evi- 
dence eciually  with  the  original  record 
or  paper.  Brightly's  Dig.  846,  §  7. 
By  a  subsequent  act,  passed  22d  of 
February,  1849,  all  books,  paper.s 
documents,  and  records  in  the  war, 
navy,  treasury,  and  post-ollice  depart- 
ments, and  the  attorney  general's  of- 
fice, mav  be  copied  and  certified,  un- 

127 


§  115.] 


THE   LAW   OF  EVIDENCE. 


[book  I. 


§  115. 


In  addition,  however,  to  the  common  law  rule,  which 
has  been  just  noticed,  the  statutes  autliorizing  the  re- 
cording of  deeds  and  other  instruments  prescribe,  almost 
universally",  that  exemplifications  of  tlie  instruments  so 
recorded  shall  be  admissible  in  evidence  as  prbnd  facie 
proof  of  their  contents.  To  make  such  copies  evidence,  however, 
the  requisites  of  the  statute  prescribed  for  the  recording  and  for 
exemplifications  must  be  complied  witli.^     The  mere  recording 


Exemplifi- 
cations of 
recorded 
deeds  ad- 
missible. 


dcr  seal,  in  the  same  manner  as  those 
in  the  State  Department,  and  with  the 
same  force  and  effect.  Brightly 's 
Dig.  269,  §  17. 

"It  is  the  certificate  of  the  oflicer 
who  is  the  custodian  of  the  original 
paper,  document,  or  record,  and  the 
seal  of  the  department,  which  makes 
the  transcript  evidence.  Smith  v.  The 
United  States,  5  Peters,  292,  300. 
The  certificates,  in  this  case,  are  in 
compliance  with  the  several  modes  of 
authenticating  documents  under  the 
act  of  Congi'ess;  Catlett  v.  Pacific  Ins, 
Co.  1  Paine  C.  C.  594,  612;  1  Wend. 
561,  578  ;  4  Wend.  75;  Smith  v.  The 
United  States,  5  Pet.  292,  297;  and 
the  transcri2)t  was  properly  received 
in  evidence. 

"  But  independently  of  this  tran- 
script, the  oral  proof  in  the  cause  and 
the  certificate  of  the  provost  marshal 
issued  to  the  volunteer  on  his  enlist- 
ment, fully  establish  the  facts  that  the 
plaintiff  was  enlisted  and  mustered 
into  the  service,  and  accepted  by  the 
mustering  officer  as  a  volunteer,  and 
credited  ujion  the  quota  of  the  city. 
Testimony  of  this  character  is  com- 
petent, and  may  be  received  in  sub- 
stitution of  transcripts  from  the  mus- 
ter-rolls of  the  war  department,  or 
even  to  contradict  the  entries  of  en- 
listments in  the  books  of  that  depart- 
ment. Chapman  Township  v.  Her- 
rold,  58  Pcnn.  St.  R.  106;  Town  of 
Lebanon  v.  Heath,  47  N.  Hamp.  353; 
Steinberg  v.  Eden,  41  Vt.  187."     De- 

128 


pue,  J.,  Hawthorne  v.  City  of  Hobo- 
ken,  35  N.  J.  251. 

We  must  remember  that  we  have 
to  go  elsewhere  than  to  English  prac- 
tice for  authorities  in  reference  to  the 
admissibility  of  cojiies  of  registered 
deeds.  The  policy  of  the  English 
landed  interests  was,  until  recently, 
to  keep  titles  secluded  from  public 
inspection  ;  and,  as  we  will  elsewhere 
see,  so  jealously  was  this  view  main- 
tained, that  a  partj'  could  not  be  com- 
pelled to  disclose  his  title  unless  upon 
the  presentation  of  a  substantial  case 
against  him.  With  us  the  tendency 
is  in  the  other  extreme,  leading  us  to 
rely  rather  on  the  registry  than  the 
deed  for  title,  and  consequently  to  be 
more  careless  about  the  formalities  of 
conveyancing. 

In  England,  however,  under  the 
new  practice,  besides  the  mode  of 
proving  enrolments  which  has  just 
been  stated,  it  is  clear  that  they  may 
now  be  proved  in  most,  if  not  in  all, 
cases  by  the  production  of  office  cop- 
ies ;  and  by  several  acts  of  parliament 
such  copies  are  made  evidence,  not 
only  of  the  enrolment  itself,  but  of  the 
contents  of  the  insti'uinenis  enrolled., 

1  Smith  V.  U.  S.  5  Pet.  292;  Bruce 
V.  U.  S.  17  How.  437;  Younge  v.  Guil- 
beau,  3  Wall.  636;  Webster  v.  Calden, 
55  Me.  171;  Farrar  v.  Fessenden,  39 
N.  H.  268;  Crowell  v.  Hopkinton,  45 
N.  H.  9;  Williams  v.  Bass,  22  Vt. 
352;  Pratt  v.  Battles,  34  Vt.  391; 
Abington  v.  North   Bridgewater,   23 


CHAP.  III.] 


COPIES    OF   DOCUMENTS. 


[§  11^. 


of  an  instrument,  however,  does  not  make  a  copy  of.  it  evidence 
unless  the  instrument  is  one  of  the  class  covered  by  the  statute.^ 
Nor,  as  will  be  in  a  moment  seen,  can  the  grantee  in  a  deed,  who 
holds  it  and  sues  on  it,  hold  it  back  and  produce  merely  an 
exemplification  of  its  registry.  In  all  cases,  however,  when  the 
object  is  to  prove  a  link  of  title  or  to  use  a  deed  evidentially,  an 
exemplification   of  the  record  is  enough.^     So,  also,  a  party  in 


Pick.   170;    Cone  v.  Emery,   2    Gray, 
80;  Pierce  v.  Gray,  7  Gray,  67;  Bol- 
ton V.  Cninmings,  25  Conn.  410;   Has- 
sell  V.   Borden,  1    Hilt.   (N.  Y.)  128; 
Garrigues  v.  Harris,  17  Penn.  St.  344; 
Curry  v.  Raymond,  28  Pean.  St.  144; 
Olipbant   v.    Ferren,    1     Watts,    57  ; 
Snyder   v.   Bowman,   4    Watts,    133; 
Harper  v.  Bank,  7   Watts  &   S.  204  ; 
Connelly  v.  Bowie,  6  Har.  &  J.  141  ; 
McCauley  v.  State,  21  Md.  556;  Pol- 
lard V.  Lively,  4  Grat.  73;  Bohanan 
V.  Shelton,  1  Jones  L.    370;  Hughes 
V.  Debnam,  8  Jones  L.  127  ;  Clarke  v. 
Diggs,    6   Ired.  L.   159  ;    Ma.\well  v. 
Carlile,  1   McCord,  534;   Williams  r. 
Cowart,  27  Ga.  187;  Massey  v.  Hackett, 
12  La.  An.  54  ;  Graham  v.  AVilliams, 
21  La.  An.  594  ;  Carpenter  i\  Feather- 
ston,  15  La.  An.  235  ;  Cogan  v.  Frisby, 
36    Miss.   178;    Davis   v.  Rhodes,  39 
Miss.  152;  Bryan  v.  Wear,  4  Mo.  106; 
Gentry  v.  Garth,  10  Mo.  226  ;  Gates  v. 
State,  13  Mo.  11;  Charlotte  v.  Chou- 
teau, 21  Mo.  590;  Musick  v.  Barney, 
49   Mo.   458;    Sheldon   v.  Coates,   10 
Ohio,  278;  Dennis  v.  Hopper,  18  111. 
82;    Deininger  v.  McConnel,  41   111. 
229  ;   Moorehouse   v.  Potter,   15   Ind. 
477;    Wills    V.    State,    22    Ind.   241; 
Niles  V.  Sprague,  13  Iowa,  198;  Mid- 
dleton    Bank   v.    Dubuque,   19    Iowa, 
469  ;    Fouke  v.  Ray,    1    Wise.    104  ; 
Brown  v.  Cady,   11  Mich.   535;   Gil- 
man  V.  Riopelle,  18  Mich.  145;  Smith 
V.    Brannan,    13    Cal.    107;    Dixon  v. 
Thatcher,  14  Ark.  141;  Touchard   v. 
Keycs,  21  Cal.  202;   Garwood  v.  Has- 
tings, 38  Cal.  216;  Canfield  v.  Thomp- 
son, 49  Cal.  211  ;   Crayton  v.  Mungcr, 

VOL.    I.  9 


11  Tex.  234;  Dikes  v.  Miller,  25  Tex. 
281,  Suppt.  As  to  exemplifications  of 
patents,  see  Peck  v.  Farrington,  9 
Wend.  44  ;  Davis  v.  Gray,  1 7  Oh.  St. 
330.  In  Wisconsin,  where  §  71,'ch. 
137,  R.  S.,  provides  that  where  a  certi- 
fied copy  of  any  record,  docuifient,  &c., 
is  allowed  by  law  to  be  evidence,  "  such 
copy  shall  be  certified  by  the  ollicer  in 
whose  custody  the  same  is  required  by 
law  to  be  to  have  been  compared  by 
him  with  the  original,  and  to  be  a  cor- 
rect transcript  therefrom,"  &c.,  it  is 
ruled,  that  this  statute  requires  the 
officer  to  certify  separately  to  each 
document  offered  in  evidence.  New- 
ell V.  Smith,  38  Wise.  39. 

1  Lemon  v.  Bacon,  4  Cranch  C  C 
466;  New  York  Dry  Dock  v.  Hicks, 
5  McLean,  HI;  Ilammatt  v.  Emer- 
son, 27  Me.  308;  Wendell  v.  Abbott, 
43  N.  H.  68;  Coule  v.  Harrington,  7 
Har.  &  J.  147;  Miles  v.  Knott,  12 
Gill  &  J.  442  ;  Berry  v.  Matthews,  13 
Md.  537;  Rushin  v.  Shields,  11  (Ja. 
636;  Thomas  v.  Bank,  17  Mi.ss.  201  ; 
Ilaile  V.  Palmer,  5  Mo.  403;  Cliildress 
I'.  Cutter,  16  Mo.  24;  Reading  i:  Mul- 
len, 31  Cal.  104;  Fitzpatrick  v.  Pope, 
39  Tex.  314;  Mapes  v.  Leal.  27  Tex. 
345.  For  cases  of  the  reception  of  the 
informal  registry  of  an  ancient  grant, 
sec  Archibald  v.  Davis,  4  Jones  L. 
133;  McMuUen  v.  Brown,  Harper, 
76. 

2  IndeptMidcntly  of  rides  of  court, 
the  certified  copy  of  a  deed  duly  re- 
corded is  jtrimii  facie  evitlence,  when 
the  parly  producing  it  is  not  the  gran- 
tee.     Scaulan    v.    Wright,    13    Pick. 

i2y 


§  115.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


whose  power  the  instrument  is,  or  can  be,  cannot  hold  it  back  and 
offer  instead  an  exemplification  of  the  record.  The  non-produc- 
tion of  the  original  must  be  accounted  for.^ 

§  115.  When  the  deed  is  duly* acknowledged  and  certified,  the 
copy  may  be  read  in  evidence  if  otherwise  admissible,  irrespec- 
tive of  the  mode  of  attestation,  in  all  cases  where  the  statute 
does  not  prescribe  a  particular  mode  of  at  testation. ^  In  such 
case  there  is  no  necessity  of  calling  the  subscribing  witnesses.^ 


523;  Hood  v.  Fuller,  15  Pick.  185; 
Commonwealth  v.  Emery,  2  Gray,  81; 
Hatch  V.  Bates,  54  Maine,  138.  See, 
also,  Groff  v.  Ramsey,  19  Minn.  44; 
Bourne  y.  Boston,  2  Gray,  497. 

"  The  defendant  objects  that  a  rec- 
ord copy  of  a  deed  in  the  line  of  his 
title  was  offered  by  the  plaintiffs  and 
admitted  in  evidence,  without  any 
previous  notice  to  him  to  produce  the 
original,  or  any  attempt  to  obtain  it 
by  other  means.  This  ruling  was 
clearly  right.  The  rule  requiring  the 
production  of  an  original  deed  applies 
only  to  a  case  where  it  is  necessary  to 
prove  a  conveyance  directly  to  a  party 
to  a  suit,  and  which  may  reasonably 
be  supposed  to  be  in  his  possession, 
but  does  not  include  prior  deeds  in 
a  chain  of  title.  Commonwealth  v. 
Emery,  2  Gray,  80."  Bigelow,  C.  J., 
Thacher  v.  Phinney,  7  Allen,  148. 
See,  to  same  general  effect,  Ury  v. 
Houston,  3G  Tex.  260. 

1  McEwen  v.  Bulkley,  24  How.  242  ; 
White  V.  Dwinel,  33  Me.  320;  Farrar 
V.  Fessenden,  39  N.  H.  268 ;  Com.  v. 
Emery,  2  Gray,  80;  Den  v.  Gustin, 
12  N.  J.  L,  42  ;  Bissell  v.  Pearce,  28 
N.  Y.  252  ;  Pardee  v.  Lindley,  31  111. 
174;  Candler  v.  Lunsford,  4  Dev.  & 
B.  L.  18;  Peck  v.  Clark,  18  Tex.  239; 
Ury  V.  Houston,  36  Tex.  260. 

2  "  It  is  also  objected  that  the  reg- 
istered copy,  when  produced,  disclosed 
the  fact  that  the  deed  was  not  exe- 
cuted in  the  presence  of  any  subscrib- 
ing witness.     But  it  was  not  necessary 

130 


to  its  validity  that  it  should  have  been 
so  signed.  Dole  v.  Thurlow,  12  Met. 
157,  165.  Nor  did  the  fact  that  the 
grantor  executed  it  without  calling  a 
witness  to  attest  the  signature  in  any 
way  affect  the  competency  of  the  copy 
which  was  admitted  in  evidence.  An 
acknowledgment  of  a  deed  duly  cer- 
tified is  essential  to  authorize  the  reg- 
ister of  deeds  to  put  it  on  record  ; 
Gen.  Sts.  c.  89,  §  28  ;  but  there  is  no 
provision  which  renders  any  partic- 
ular mode  of  execution  necessary,  in 
order  to  render  a  deed  legally  suitable 
for  registry.  As  the  deed  in  question 
was  duly  recorded,  the  record  copy 
was  good  prima  facie  evidence  of  tlie 
contents  of  the  original  deed."  Big- 
elow, C.  J.,  Thacher  v.  Phinney,  7 
Allen,  148. 

8  Infra,  §  740.  "  The  office  copy 
of  the  deed,  Wm.  M.  Mann  to  Oba- 
diah  Mann,  dated  July  28,  1853,  was 
properly  received  under  the  provision 
of  the  statute  of  1862,  c.  112.  This 
was  held  prima  facie  to  establish  the 
tenant's  title.  Blethen  v.  Dwinel,  34 
Maine,  133.  An  office  copy  being 
prima  facie  evidence,  there  is  no  ne- 
cessity for  calling  the  attesting  wit- 
ness. Eaton  V.  Campbell,  7  Pick.  12. 
It  raises  a  presumption  that  the  grantor 
had  sufficient  seisin  to  enable  him  to 
convey,  and  operates  to  vest  the  legal 
seisin  in  tlie  grantee.  Ward  v.  Fuller, 
15  Pick.  185.  When  the  original  is 
not  in  the  custody  of,  or  power  of  the 
party  having  occasion  to  use  it,  the 


CHAP.  III.] 


COPIES    OF   DOCUMENTS. 


[§  118. 


§  IIG.  The  copy  may  be  certified  to  by  the  officer  designated 
by  tlie  statute  or  by  his  deputy  acting  for  him  and  in  his  name.^ 
If  by  a  stranger,  the  certificate  is  void.^  There  need,  however, 
be  no  facsimile  of  vignette  or  seal,  if  the  seal  be  indicated.^ 

§  117.  An  abstract  or  summary  of  an  instrument  is  not  within 
the  recording  statutes,  and  is  not  made  evidence  by  force  of  such 
statutes.*  Nor  can  an  exemplification  be  admissible  in  cases 
where  the  original  would  not  be  received.^ 

§  118.  An  exemplification  from  a  registry  of  another  state  is 
not  admissible  merely  by  force  of  tlie  statutes  of  such  Exempiifi- 
other  state. ^  It  must  be  authenticated  (unless  there 
be  local  legislation  or  adjudications  prescribing  less 
stringent  tests)  according  to  the  act  of  Congress.'' 
When  the  act  of  Congress  is  substantially  complied 
with,  they  may  be  received.^  But  it  must  appear  that 
the  registry  was  in  conformity  with  the  laws   of   the 


cations  of 
deeds  re- 
corded in 
other  states 
must  be 
proved 
under  act 
of  Con- 
gress. 


certified  copy  is  prima  facie  evidence 
of  the  original  and  its  execution,  sub- 
ject to  be  controlled  by  rebutting  evi- 
dence. Com.  V.  Emery,  2  Gray,  80." 
Applcton,  C.  J.,  Webster  v.  Calden, 
55  INIaine,  171. 

1  U.  S.  V.  GrifTith,  2  Cranch  C.  C. 
3GG;  Bleecker  v.  Bond,  3  Wash.  C.  C. 
329  ;  Dyer  v.  Snow,  47  Me.  254  ; 
Hayne  v.  Porter,  45  111.  318  ;  Grea- 
sons  V.  Davis,  9  Iowa,  219  ;  Watsoni;. 
Tindal,  24  Ga.  494 ;  Stephens  v. 
Westwood,  25  Ala.  716 ;  Clark  v. 
Hunniierlc,  36  Mo.  620 ;  Triplett  v. 
Gill,  7  J.  J.  Marsh.  438. 

2  Woods  V.  Banks,  14  N.  II.  101  ; 
State  V.  Clark,  24  N.  J.  L.  510  ;  Dcv- 
ling  V.  Williamson,  9  Watts,  311. 

3  Snced  v.  Ward,  5  Dana,  187  ; 
Ilolbrook  V.  Nichoh  36  111.  161  ;  State 
V.  Bailey,  7  Iowa,  390.     Infra,  §  693. 

Tliat  the  copy  is  only  prima  facie 
proof  as  to  authenticity  and  accu- 
racy, and  may  be  assailed,  see  Har- 
vey V.  Mitchell,  31  N.  II.  575  ;  Pres- 
ton I'.  Robinson,  24  Vt.  583;  Eberts  c. 
Eberts,  55  l\'iin.  St.  110;  Sams  r. 
Shield,  11  Kicli.  182;  Cong.  Church  v. 


Morris,  8  Ala.  182;  Harvey  v.  Thorpe, 
28  Ala.  250. 

<  Given  V.  Boyle,  15  Me.  147;  Ma- 
guire  V.  Sayward,  22  Me.  230  ;  Grif- 
fith V.  Tunckhouser,  Pet.  C.  C.  418; 
Struthers  v.  Reese,  4  Penn.  St.  129; 
Cox  r.  Cox,  26  Penn.  St.  375;  Drake 
V.  ]\Iorris,  2  Jones  L.  308  ;  Wray  i'. 
Ho-ya-pa-nubby,  18  Miss.  452  ;  Foute 
V.  McDonald,  27  Miss.  610.  See  su- 
pra, §  80. 

6  State  V.  Wells,  11  Oh.  261. 

®  Drumniond  v.  Magruder,  9  Cranch, 
122;  Ilylton  v.  Brown,  1  Wash.  C. 
C.  208;  Quay  v.  Ins.  Co.  Anlhon,  173; 
Petermans  v.  I^aws,  6  Leigh,  523.  See 
Thompson  v.  Bank,  3  Coldw.  46. 

''  Drummond  v.  Magruder.  9  Cranch, 
122;  Secrist  v.  Green,  3  Wall.  744; 
Garrigues  v.  Harris,  17  Penn.  St.  344; 
Pennel  v.  Wayant,  2  Harring.  502  ; 
Key  V.  Vaughn,  15  Ala.  497;  Wat- 
rous  I'.  McGrew,  16  Tex.  506.  See 
McCormick  v.  Evans,  33  III.  327. 

*  King  ('.Dale,  1  Scam.  513;  Spt-n- 
cer  r.  Langdon,  21  111.  19'2;  llochester 
I".  Toler,  4  Bibb,  106;  Smith  r.  Roach, 
7  B.  Mon.  17. 

131 


§  120.] 


THE   LAW    OF   EVIDENCE. 


[book  I. 


registering  state,  which  must  be  duly  proved.^  Even  when  thus 
duly  proved,  a  copy  of  a  deed  recorded  in  another  state  cannot 
be  received  to  pass  the  title  to  lands  in  a  state  where  it  is  pro- 
vided by  statute  that  title  shall  only  be  passed  by  deeds  recorded 
in  the  county  where  the  land  lies.^ 

§  119.  Exemplifications  of  foreign  walls,  decrees,  or  grants,  or 
Exemp'ifi-  of  other  instruments  that  cannot  be  removed  from  the 
original  archives,  may  be  proved  by  the  official  certifi- 
cate and  seal  of  the  secretary  of  the  sovereign  of  the 
country  where  the  archives  exist. ^  In  Pennsylvania, 
an  exemplification  of  a  will  under  the  seal  of  the  Eng- 
lish prerogative  court  has  been  received."*  So  notarial  copies 
have,  in  proper  cases,  been  received.^ 

§  120.  At  common  law,  the  certificate  of  a  public  officer,  no 
matter  how  high  and  solemn  his  office,  is  inadmissible 
to  prove  any  disputed  fact.  The  officer,  if  living,  must 
be  produced  to  swear  to  the  fact.  If  he  be  dead,  his 
official  entries,  made  in  the  discharge  of  his  duties,  may 
be  evidence.  If  the  object  is  to  prove  that  a  fact  appears  by  rec- 
ord, the  record  itself  must  be  exemplified  or  produced.  His  cer- 
tificate, however,  being  of  the  nature  of  hearsay,  and  ex  jiarte^ 
is  in  itself  inadmissible.^     When  the   certificate  states  a  conclu- 


cations  of 
foreign 
wills  or 
grants 
provable 
by  certifi- 
cate. 


Certificates 
of  officers 
admissible 
when  pro- 
vided by 
statute. 


1  Stevens  v.  Bomar,  9  Hump.  546; 
Dickson  v.  Grissom,  4  La.  An.  538; 
Dunlop  V.  Dougherty,  20  111.  397;  Kidd 
r.  Manley,  28  Miss.  156. 

2  State  V.  Engle,  21  N.  J.  L.  347; 
Kelley  v.  Ross,  Busb.  (N.  C.)  L.  184. 

8  U.  S.  V.  Wiggin,  14  Pet.  334;  U. 
S.  w.  Delespine,  15  Pet.  226;  De  So- 
bry  V,  De  Laistre,  2  Har.  &  J.  19.  See 
supra,  §  110. 

*  Weston  V.  Stammers,  1  Dall.  2. 

5  Bowman  r.  Sanborn,  25  N.  H.  87. 

«  Roberts  v.  Eddington,  4  Esp.  88; 
Omicliund  v.  Barker,  Willes,  549  ; 
Sewell  V.  Corp.  1  C.  &  P.  392;  R.  v. 
Sewell,  8  Q.  B.  161  ;  Swan  v.  Hughes, 
1  Wash.  C.  C.  216  ;  Barert  v.  Day,  3 
Wash.  C.  C.  243;  Great  Pond  Co.  v. 
Buzzell,  39  Me.  173;  Jay  v.  East  Liv- 
erraore,  56  Me.  107;  Davis  v.  Clem- 
ents, 2  N.  H.  390;  Wells  v.  Burbank, 

132 


17  N.  H.  393;  Oakes  v.  Hill,  14  Pick. 
442;  Reed  v.  Scituate,  7  Allen,  141 
Wayland  v.  Ware,  104  Mass.  46 
Wayland  v.  Ware,  109  Mass.  248 
Hopkins  v.  Millard,  9  R.  I.  37  ;  Jack- 
son D.Miller,  6  Cow.  751;  Erickson 
V.  Smith,  38  How.  N.  Y.  (Pr.)  454; 
Wilkinson  v.  Jewett,  7  Leigh,  115; 
Harbers  v.  Tribby,  62  111.  56  ;  Cope- 
land,  ex  parte.  Rice,  Ch.  69;  White 
V.  Clements,  39  Ga.  232  ;  Chou- 
teau V.  Chevalier,  1  Mo.  343  ;  Stoner 
V.  Ellis,  6  Ind.  152;  Greenwood  v. 
Spiller,  3  111.  502  ;  Cross  v.  Mill  Co. 
17  111.  64  ;  Allen  v.  Dunham,  1 
Greene  (Iowa),  89;  Cardwell  v.  Me- 
bane,  68  N.  C.  485  ;  Mayo  r.  Johnson, 
4  Ark.  613;  Obermier  i-.  Core,  25  Ark. 
562.  See,  however,  as  to  certificates 
by  foreign  dignitaries,  Bingham  r. 
Cabot,  3  Dan.  19  ;  U.  S.  r.  Acosta,  1 


CHAP.  III.] 


CERTIFICATES   OF    OFFICERS. 


[§  120. 


sion  from  a  record,  the  record  itself  is  the  primary  evidence. 
Thus  a  certificate  froin  a  clerk,  stating  the  effect  of  a  judicial 
proceeding  (^e- g.  a  judgment  or  decree),  is  not  admissible  to 
prove  the  fact  therein  stated  when  the  object  is  dispositive.  The 
record  itself  must  be  set  forth.^  So  a  certificate  from  the  United 
States  commissioner  of  patents  that  diligent  search  has  been 
made,  and  that  it  does  not  appear  that  a  certain  patent  has  been 
issued,  is  not  competent  evidence  of   that  fact.-     Statutes,  how- 


How.  24;  17  Pet.  16  ;  U.  S.  u.  Mitch- 
ell, 3  Wash.  95.  As  to  certificates  of 
consuls,  U.  S.  V.  Mitchell,  2  Wash.  C. 
C.  478;  Morton  v.  Barrett,  19  Me. 
109  ;  as  to  protests  of  masters  of  ships, 
Harper  v.  Lonfj,  1  Dal.  6;  as  to  certif- 
icate of  marine  sui'veyors,  Perkins  v. 
Ins.  Co.  10  Gi'ay,  312;  as  to  certifi- 
cates of  acknowledgment  of  deeds,  see 
infra,  §  1052. 

The  government  inspector's  certifi- 
cate is  not  evidence  upon  the  ques- 
tion whether  a  steamboat  engine  is 
constructed  in  accordance  with  the 
terms  of  the  manufacturer's  contract. 
Clark  r.  Detroit,  32  Mich.  348. 

1  McCiuire  v.  Sayward,  22  Me.  233; 
Jay  V.  Livermore,  5G  jMe.  109  ;  Oakes 
V.  Hill,  14  Pick.  448;  Green  v.  Dnr- 
fee,  G  Cnsh.  363.     Infra,  §  824. 

2  IJulIock  V.  Wallingford,  55  N.  II. 
619. 

"  Tlie  certificate  should  have  been 
rejected.  It  was  the  conclusion 
drawn  by  the  certifying  oOicer  from 
the  examination  of  the  records  in  his 
office,  and  possil)ly  he  may  have  been 
mistMkcu.  Hanson  »'.  South  Scituate, 
115  IVhiss.  336.  The  statute  author- 
izes him  to  certify  to  the  correctness 
of  copies  of  records  in  his  office.  ^Vliat 
effect  shall  be  given  to  such  copies  is 
a  question  for  the  court  when  put  in 
evidence.  When  a  party  desires  to 
prove  the  negative  fact  that  there  is 
no  record,  lie  must  do  so  in  the  usual 
way, —  by  the  de|)osition  of  the  proper 
officer,  or  by  producing  him   in  court 


so  that  he  may  be  sworn  and  cross- 
examined  as  to  the  thoroughness  of 
the  search  made.  If  the  summoning 
of  such  officer  to  testify  in  relation  to 
the  public  records  at  the  call  of  a 
suitor  shall  be  found  im])rariicable  by 
reason  of  interfering  with  all  his  pub- 
lic duties,  the  remedy  must  be  found 
in  further  legislation.  The  court  can- 
not disregard  the  plain  rules  of  evi- 
dence to  meet  the  difficulty."  Smith, 
J.,  Bullock  V.  Wallingford,  55  N.  H. 
620. 

So  it  has  been  ruled  in  Massachu- 
setts, that  while  an  official  certificate 
to  a  fact  maybe  by  statute  ailmissihle, 
it  is  otherwise  at  common  law,  as  to 
an  official  summary  of  a  document. 

"  The  certificate  of  discharge  was 
also  competent  for  the  purpose  of 
showing  that  Thomas  did  not  leave  tho 
service  otherwise  than  by  reason  of  an 
honorable  discharge.  The  defendant 
did  not  ask  for  any  ruling  as  to  the 
effect  to  be  given  to  the  indorsements 
upon  it  subsequently  made  at  the  office 
of  the  adjutant  general  of  the  army  of 
the  United  States;  but  objected  gen- 
erally to  its  admissil)ility  apparently 
for  any  purpose.  What  eff'ect  was 
given  to  these  by  the  presiding  ju<lgo 
is  not  shown  by  the  exceptions;  but 
its  admissibility  was  not  aff'fcted  by 
indorsements,  which,  without  the  con- 
sent of  the  soldier,  had  sul)se(juently 
been  placed  upon  it. 

"  In  Fitchburg  w  Lunenlnwg,  102 
Mass.  358,  reported  since  this  case  was 

133 


§  120.] 


THE    LAW    OF    EVIDENCE. 


[book  I. 


ever,  have  been  passed,  in  many  instances,  antliorizing  public 
officers  to  certify  to  facts  within  the  range  of  their  departments  ; 
and  so  convenient  is  this  practice,  tliat  tlie  tendency  of  the 
courts  is  to  so  construe  these  statutes,  when  this  may  be  done 
consistently  with  their  letter,  as  to  make  such  certificates  primd 
facie  evidence  of  the  facts  to  which  they  certify .^ 


tried,  it  was  held  that  a  certificate  in 
due  form,  from  the  proper  miUtary  offi- 
cer, of  an  honorable  discharge  from 
the  military  service  of  the  United 
States,  was  conclusive  evidence  of  the 
cause  and  manner  of  leaving  the  ser- 
vice b}'  a  soldier,  and  that  evidence, 
which  in  that  case  had  been  otTered 
of  the  soldier's  ]n*evious  absence  from 
duty,  and  of"  his  arrest  for  desertion, 
unaccompanied  by  any  evidence  that 
he  had  been  convicted  or  sentenced 
therefor,  was  incompetent  and  rightly 
rejected.  Utder  this  decision  much 
of  the  evidence  which  was  admitted 
for  the  defendant  was  immaterial,  and 
it  remains  only  to  be  seen  whether  it 
was  in  any  way  prejudiced  as  to  the 
true  issue  of  the  case  by  the  refusal 
to  give  the  instructions  requested,  or 
to  receive  such  other  evidence  as  Avas 
offered. 

"  The  defendant  requested  the  court 
to  rule  that  the  rolls  admitted  were 
conclusive  evi  lence  of  desertion.  Upon 
the  muster-roll,  wliich  is  made  every 
two  months,  the  reasons  and  time  cf 
absence  of  each  soldier  are  required 
to  be  entered  (Articles  of  War,  art. 
13,  U.  S.  St.  of  1806,  c.  20),  and  en- 
try of  the  word  '  deserted,'  by  the 
commanding  officer  of  the  company, 
who  is  then  to  account  for  all  the 
men  of  his  command,  against  the 
name  of  the  soldier,  is  in  the  nature  of 
a  charge  against  such  soldier  of  the 
crime  of  desertion  ;  but  it  is  not  an 
adjudication  that  he  is  guilty  of  the 
offence,  which,  as  it  is  one  of  the 
gravest  offences  known  to  the  military 

134 


law,  can  be  made  only  by  a  court- 
martial.  The  court,  therefore,  in  per- 
mitting this  evidence  of  the  entry 
upon  the  muster-roll  to  be  weighed 
with  the  other  evidence  in  tlie  case 
upon  the  question  of  wilful  desertion, 
gave  it  a  consideration  at  least  as 
great  as  that  to  which  it  was  entitled. 

"  The  certificate  from  the  adjutant 
general's  office,  signed  by  one  of  the 
assistant  adjutants  general,  of  what 
appeared  from  the  records  of  that 
office,  did  not  profess  to  be  a  tran- 
script of  the  records,  but  was  simply 
a  statement  of  what  the  certifying 
officer,  under  whose  hand  it  was, 
deemed  to  be  shown  by  them ;  and 
was  rightly  rejected,  even  if  other- 
wise competent,  for  the  reason  that  it 
was  clearly  possible  tliat  the  officer 
might  have  been  mistaken  as  to  the 
true  conclusions  to  be  drawn  from  the 
records.  Oakes  v.  Hill,  14  Pick.  442; 
Robbins  r.  Townsend,  20  Pick.  345." 
Devens,  J.,  Hanson  v.  South  Scituate, 
115  Mass.  341. 

1  R.  V.  Levy,  8  Cox  C.  C.  73 ;  R. 
V.  Wenham,  10  Cox  C.  C.  222;  Wil- 
liams V.  Canal  Co.  L.  R.  3  Ex.  158; 
Oakes  v.  Turquand,  L.  R.  2  H.  L.  325; 
Laing  v.  Reed,  L.  R.  5  Ch.  Ap.  4; 
Fellows  V.  Pedrick,  4  Wash.  C.  C. 
477;  Levy  v.  Burley,  2  Sumn.  355; 
Ferguson  v.  Clifford,  37  N.  H.  86; 
Bartlett  v.  Boyd,  34  Vt.  256  ;  Lem- 
ington  V.  Blodgett,  37  Vt.  210;  People 
V.  Cook,  14  Barb.  259;  State  v.  Clo- 
thier, 30  N.  J.  L.  351 ;  Weidman  v. 
Kohr,  4  Serg.  &  R.  174;  Crane  r. 
State,  1  Md.  27;  Prather  v.  Johnson, 


CHAP.  III.] 


CERTIFICATES    OF   OFFICERS. 


[§  122. 


§  122.  But  where  the  duty  of  a  public  officer  is  merely  to  cer- 
tify to  a  record,  this  will  not  be  construed  as  giving  him  author- 
ity to  certify  to  facts  explanatory  of  or  collateral  to  the  record. ^ 
The  certificate,  also,  must  be  made  by  the  officer  himself  or 
his  legal  deputy.  If  by  a  person  without  official  character,  it 
is  inoperative.2  Nor  can  such  certificate  cover  facts  out  of  the 
range  of  the  officer's  official  cognizance  ;  ^  nor  facts  whicli  are 
but  a  summary  of  writings  on  file  in  the  archives  of  such  offi- 
cer.* The  certificate  cannot  be  by  an  informal  letter  or  mem- 
orandum ;  it  must  be  formally  certified  to,  under  the  officer's 
seal.^ 


3  Har.  &  J.  487;  Morrill  v.  Gelston, 
34  M(l.  413  ;  Usber  );.  Pride,  15  Grat. 
190;  IL'mngton  o.  White,  1  Bibb,  115; 
Brooking;  r.  Doarinond,  27  Ga.  58 ; 
New  Orleans  11.  R.  v.  Lea,  12  La.  An. 
388;  Jones,  Succession  of,  12  La.  An. 
397;  Tucker  v.  Biirris,  12  La.  An. 
871 ;  Gunio  v.  Tanis,  6  Mo.  330;  Fay- 
ette Co.  V.  CiiitwooJ,  8  Ind.  504;  De- 
launay  r.  Burnett,  9  III.  454;  John- 
ston r.  University,  35  111.  518;  Clark 
V.  Polk  Co.  19  Iowa,  248;  Pierson  v. 
Reed,  3G  Iowa,  257;  Dornian  v.  Ames, 
12  Minn.  451;  McDonald  i'.  Edmonds, 
44  Cal.  328.  See  Grant  v.  Coal  Co. 
Weekly  Notes  of  Cases,  215.  See, 
as  to  ruling  that  inventories  by  sworn 
appraisers  of  decedents'  estates  are 
adnus^ible  for  or  against  strangers, 
Seavcy  v.  Seavey,  37  N.  H.  125. 

Thus,  under  the  U.  S.  St.  of  18G4, 
c.  lOG,  §  C,  a  copy  of  the  certificate  of 
organization  of  an  United  States  na- 
tional blink,  which  was  certified  by 
the  comptroller  of  the  currency  and 
authi'Ulicated  by  his  seal  of  office,  is 
competent,  evidence  in  a  state  court. 
Tapley  v.  Martin,  IIG  Mass.  275.  See 
Washing.  Co.  Bk.  v.  Lee,  112  Mass. 
521  ;  First  Nat.  Bk.  of  Memphis  v. 
Kidd,  20  I^Iinn.  234. 

"  The  copy  of  the  certificate  of  or- 
ganizatirm  of  the  Hide  and  Leather 
National  Bank,  certified  by  the  com])- 
troUer  of  the  currency,  was  properly 


admitted  in  evidence.  The  act  of 
Congress  provides  that  (•oi)ies  of  snch 
certificates,  duly  certified  by  the  comp- 
troller, and  authenticated  by  his  seal 
of  office,  shall  be  '  evidence  in  all  courts 
and  places  within  the  United  States.' 
U.  S.  St.  18G4,  c.  lOG,  §  6.  And,  in- 
dependently of  this  provi.«^ion,  such 
certificates,  when  filed,  are  a  part  of 
the  public  records,  and  may  be  proved 
by  duly  authenticated  copies.  Stetson 
V.  Gulliver,  2  Cu#i.  494  ;  Oiikes  i'. 
Hill,  14  Pick.  442."  Morton,  J.,  Tap- 
ley  V.  Martin,  IIC  Mass.  275-7G. 

1  Brown  V.  Galloway,  Pet.  C.  C. 
291  ;  Flanders  v.  Thompson,  2  N.  H. 
421  ;  Stewart  v.  Allison,  G  Serg.  & 
R.  324  ;  Martin  v.  Anderson.  21  Ga. 
301  ;  Littleton  r.  Christy,  11  Mo.  390; 
Brown  v.  The  Independent,  Crabbe, 
54. 

2  Bleecker  v.  Bond,  3  Wa^h.  C.  C. 
329;  Hunk  v.  Ten  Kyck,  2t  N.  J.  L. 
75G  ;  Urket  v.  Coryell,  5  Walls  &  S. 
GO. 

8  Garwood  t*.  Donnis,-4  BInn.  314; 
Newman  c.  Doe,  4  How.  (.Miss.)  522. 

*  Armstrong  v.  Boy  Ian,  1  South.  (N. 
J.)  7G.     See  supra,  §  80. 

6  Davis  r.  White,  3  Yeates,  5R7; 
!McKenzie  c.  Crow,  4  Yeate.",  428; 
Morgan  Co.  Bk.  v.  People,  24  111. 
304.  See  Brink  f.  Spaulding,  41  Vt. 
9G. 

135 


§  123.] 


Tlir:    LAW    OF    EVIDKNCE. 


[book  I. 


§  123.  In  England,  as  we  have  already  seen,  whatever  may 
JJ^^^^ ,,  have  been  the  earlier  tendency  of  the  courts,  it  is  now 
coriiiiiiite     held  that  the  execution  of  a  foreign  or  colonial  deed 

admissible.  ,  .  „  i       t      •  -i 

cannot  be  proved  by  a  notary  s  certificate.^  It  is  oth- 
erwise, however,  by  the  law  merchant,  in  respect  to  foreign  ne- 
gotiable paper;  as  to  which  the  original  protests,  or  duly  cer- 
tified copies,  when  proved  by  the  notarial  seal,  are  primd  facie 
evidence  of  demand  and  protest.^  Such  certificates,  however, 
must  be  in  conformity  with  the  local  law,  on  the  principle,  locus 
regit  actum. ^  The  facts  certified  to  must  appear  to  have  been 
within  the  cognizance  of  the  notarj^  and  to  relate  to  bills  of 
exchange,  or  protests  of  ships,^  and  the  protest  must  have 
been  promptly  made.^  Protest  must  be  under  seal,^  though 
this  may  be  shown  by  the  inspection  of  the  document,  when  not 
recited  in  the  certificate.'^     The  protest,  it  should  be  remembered, 

1  Nye  V.  Macdonald,  L.  R.  3  P.  C.  379;  Williams  v.  Turner,  2  Bay,  411. 
331 ;  Earl's  Trusts,  L.  E..  8  Eq.  98.  Contra,  at  common  law,  as  to  inland 
So,  also,  Diez,  in  re,  5G  Barb.  591.  bills  of  exchange  or  promissory  notes: 
And  see  fully,  supra,  §  120.  Carter  v.  Burley,  9  N.  H.  558  ;   Dutch- 

2  2  Daniel  on  Negot.  Inst.  §  959;  ess  Co.  Bk.  v.  Ibbotson,  5  Den.  110; 
Nicholls  V.  Webb,  8  Wheat.  333  ;  Kirtland  v.  Wanzer,  2  Duer,  278  ; 
Townsley  v.  Sun#all,  2  Pet.  179;  Hatfield  r.  Perry,  4  Harr.  (Del.)  463; 
Wilson  r.  Stewart,  1  Cranch  C.  C.  128;  Bond  v.  Bragg,  17  111.  69.  And  so  as 
Orr  V.  Lacy,  4  McLean,  243;  Pattee  to  presentments  of  notes,  for  payment 
V.  McCrillis,  53  Me.  410  ;  Rushworth  out  of  state  :  Dutchess  Co.  Bk.  v.  Ib- 
V.  Moore,   36  N.    H.   188;    Austin   v.  botson,  5  Denio,  510;    Schoneman  v. 


Wilson,  24  Vt.  630  ;  Union  Bk.  v. 
Gregory,  46  Barb.  98  ;  Barker  v. 
Ketchum,  7  Hill  (N.  Y.),  444  ;  Mc- 
Andrew  v.  Kadway,    34    N.   Y.    511; 


Tegley,  7  Penn.  St.  433  ;   Coleman  v. 

Smith,    26   Penn.   St.    255 ;  corrected 

by  Starr  v.  Sanford,  45  Penn.  St.  193. 

3  McAfee  v.  Doremus,  5  How.  53  ; 


Lawson  v.  Pinckney,  40  N.  Y.   Sup.     Bank   of  Rochester   v.    Gray,    2   Hill 
Ct.  187;  Dunn  v.  Devlin,  2  Daly,  122;     (N.  Y.),  227;  Ticknor  v.  Roberts,  11 


Baumgardner  v.  Reeves,  35  Penn.  St. 
250 ;  Ricketts  v.  Pendleton,  14  Md. 
820 ;  Elliott  v.  White,  6  Jones  (N.  C. 
L.),  98  ;  Field  v.  Thornton,  1  Ga. 
306  ;  Booker  v.  Lowry,  2  Ala.  390  ; 
Rives  V.  Parmley,  18  Ala.  256;  Spann 
V.  Baltzell,  1  Fla.  301 ;  Rowley  v. 
Berrian,  12  111.  198  ;  Carruth  v. 
Walker,  8  Wise.  252;  Fellows  v. 
Menasha,  11  Wise.  550  ;  Johnson  v. 
Cocks,  12  Ark.  672;  McFarland  v. 
Pico,  8  Cal.  626 ;  Tyler  v.  Bank,  7  T. 
B.  Monr.  555  ;  Moore  v.  Bank,  6  Mo. 

136 


La.  14  ;  Ray  v.  Porter,  42  Ala.  327. 

*  Talcott  V.  Ins.  Co.  2  Wash.  C.  C. 
449  ;  Welsh  v.  Barrett,  15  Mass.  380; 
Foster  v.  Davis,  1  Litt.  (Ky.)  71  ; 
Moore  v.  Worthington,  2  Duv.  307, 

5  Boggs  V.  Bank,  10  Ala.  970;  Win- 
chester V.  Wincliester,  4  Humph.  151. 
See  Chatham  Bk.  v.  Allison,  15  Iowa, 
357;  Brandon  v.  Loftus,  4  How. 
(Miss.)  127. 

«  McKellar  v.  Peck,  39  Tex.  381. 

T  Dale  V.  Wright,  59  Mo.  110. 


CHAP.  III.] 


NOTARIES     CERTIFICATES. 


[§  123. 


is  but  primd  facie  proof  ;  ^  and  it  is  not  exoliisivo  proof.  Notice 
and  protest  may  be  proved  by  other  competent  evidence.^  For 
such  purpose  the  admission  of  the  party  charged  is  competent.' 
And  the  notary  may  himself  prove  the  facts,  althougli  he  has 
duly  entered  them  in  an  official  registry,  Avliich  he  has  pre- 
served.* By  the  law  merchant  the  protest  is  not  proof  that  the 
notices  of  dishonor  were  properly  addressed,  or  that  notice  was 
properly  given.  When  the  bill  has  been  protested,  the  official 
duties  of  the  notar}^  under  that  law,  are  closed.^  But  in  most 
jurisdictions  a  certificate  of  the  notary  is  by  statute,  if  not  by 
local  nsixge,  pi'imd  facie  evidence  of  all  the  facts  it  avers.**  •  At 
the  same  time  if  the  certificate  avers  notice  to  the  indorsers  at  a 
particular  place,  or  by  a  particular  agent,  there  must  be  proof 
that  they  lived  in  such  place,  or  acknowledged  such  agent."     Nor 

^  See  cases  just  cited,  and  2  Daniel 
on  Negot.  Inst.  §  959,  citing  Dickens 
I'.  Beal,  10  Pet.  582  ;  Ricketts  v.  Pen- 
dleton, 14  Md.  320;  Union  Bk.  v. 
Fowles,  2  Sneed,  555  ;  Nelson  v.  Fot- 
terall,  7  Leigh,  ISO. 


2  IMarch  v.  Garland,  20  Me.  24  ;  New 
Haven  Bk.  v.  Mitchell,  15  Conn.  206; 
Cole  I'.  Jessup,  10  N.  Y.  96  ;  Bank  v. 
Woods,  28  N.  Y.  545;  Bell  v.  Bank, 
7  Gill,  216;  Wetherall  r.  Garrett,  28 
Md.  450;  Eddy  ".  Peterson,  22  111. 
535  ;  Ball  v.  Bank,  8  Ala.  590  ;  La- 
throp  ('.  Lawson,  5  La.  An.  238  ;  Bank 
of  Ky.  V.  Duncan,  4  Bush,  294. 

^  Derickson  v.  AVhitney,  6  Gray, 
248  ;  Long  v.  Crawford,  18  Md.  220. 

*  Draper  t\  Clemens,  4  Mo.  52  ; 
Adauis  r.  AVright,  14  Wise.  408;  Ter- 
bell  V.  Jones,  15  Wise.  253. 

^  Dickens  v.  Beal,  10  Pet.  582  ; 
Williams  v.  Putnam,  14  N.  H.  540  ; 
Morgan  v.  Van  Ingen,  2  Johns.  204  ; 
Miller  v.  Ilackley,  5  Johns.  384  ;  Bank 
of  Rochester  v.  Gray,  2  Hill,  231 ; 
Walker  v.  Turner,  2  Grat.  536  ; 
Bank  of  Mobile  v.  King,  9  Ala.  279; 
Sullivan  r.  Deadman,  19  Ark.  484; 
Rives  V.  Parmley,  18  Ala.  256.  See 
Castles  t'.  McMath,  1  Ala.  326  ;  Leigh 


V.  Lightfoot,  11  Ala.  935.  It  is  plain 
that  when  the  notary  acts  only  as 
agent  for  a  party,  he  is  only  bound  to 
such  party.  ]\Iorgan  v.  Van  Ingen,  2 
Johns.  R.  204. 

«  Beckwith  v.  Man.  Co.  26  Me.  45; 
Ticonie  Bk.  v.  Stackpole,  41  Me.  321; 
Lewiston  Bk.  v.  Leonard,  43  Me.  144; 
Ilousatonic  Bk.  v.  Laflin,  5  Cush.546; 
Union  Bank  v.  Middlebrook,  33  Conn. 
95 ;  Bank  of  Rochester  v.  Gray,  2 
Hill,  231  ;  Starr  v.  Sanford,  45  Penn. 
St.  193;  Bank  of  the  Com.  v.  Mud- 
gett,  44  N.  Y.  514  ;  Crawley  v. 
Barry,  4  Gill,  194  ;  Fisher  r.  Bank,  7 
Blackf.  610  ;  O'Neil  v.  Dickson,  11 
Ind.  253;  Brooks  v.  Day,  11  Iowa, 
46;  Walker  v.  Rank,  3  Va.  486; 
Southern  Bk.  v.  Mech.  Bk.  27  Ga. 
252;  Rives  v.  Parmley,  18  Ala.  256; 
Bank  of  Ky.  v.  Goodale,  20  La.  An. 
50  ;  McFarland  v.  Pico,  8  Cal.  626. 
In  Parsons  on  Notes  and  Bills,  408,  it 
is   contendt^d   that  this  liolds  <jooil  at 


common  law. 

''  Turner  v.  Rogers,  8  Ind. 
Bradshaw  v.  Hedge,  10  Iowa, 
Drumm  r.  Biadfutf,  18  La. 
680. 

137 


139  ; 

402  ; 

An. 


§  124.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


is  the  notary's  recital  proof  that  the  drawee  had  no  funds.^  Nor 
can  the  protest  be  stretched  to  make  it  evidence  of  any  coUateral 
facts  which  it  does  not  specifically  aver,  unless  such  facts  are 
involved  in  facts  which  are  averred.^  When,  however,  a  fact  is 
averred  to  be  done  by  the  protest,  the  presumption  is  that  it 
was  done  regular!}'.^ 

§  124.  Evidence  of  a  conflicting  local  custom  is  inadmissible  to 
vary  the  duties  imposed  on  the  notary  by  the  law  merchant.* 
If  a  custom  be  recognized  in  this  respect,  it  must  be  not  only 


1  Dakin  v.  Graves,  48  N.  H.  45. 

2  Dakin  c.  Graves,  48  N.  H.  45  ; 
Young  V.  Bennett,  18  Penn.  St.  2G1  ; 
Paine  v.  Rice,  2  Patt.  &  H.  530  ;  Du- 
mont  V.  Pope,  7  Blackf.  367;  Turner 
V.  Rogers,  8  Ind.  140  ;  Sullivan  v. 
Deadman,  19  Ark.  486. 

3  Infra,  §  1311,  1318;  Bank  U.  S. 
V.  Smith,  11  Wheat.  171  ;  Pattee  v. 
McCrillis,  53  Me.  410  ;  Simpson  v. 
White,  40  N.  H.  540 ;  Union  Bk.  v. 
Middlebrook,  33  Conn.  95;  Bank  of 
Commerce  v.  Mudgett,  44  N.  Y.  514; 
Coleman  v.  Smith,  26  Penn.  St.  255  ; 
Nelson  v.  Fotterall,  7  Leigh,  179  ; 
Stainback  v.  Bank,  11  Grat.  260; 
Elliott  V.  White,  6  Jones  (N.  C),  98  ; 
Whaley  v.  Houston,  12  La.  An.  585; 
Wamsley  i;.  Rivers,  34  Iowa,  466;  Mc- 
Farland  r.  Pico,  8  Cal.  626.  See  Ma- 
goun  V.  Walker,  48  Me.  420;  Seneca 
Bk.  V.  Neass,  5  Den.  329.  See  discus- 
sion on  this  topic  in  Byles  on  Bills,  254 ; 
2  Daniels  on  Negot.  Inst.  §  963  et  seq. 

Of  the  New  York  statute  we  have 
the  following  authoritative  construc- 
tion :  — 

"  It  is  provided  by  statute  (Laws  of 
1823,  chap.  271,  §  8),  that  in  all  ac- 
tions at  law  the  certificate  of  a  notary, 
under  his  liand  and  seal,  of  the  pre- 
sentment by  him  of  any  promissory 
note  for  payment,  and  of  the  protest 
thereof  for  non-payment,  shall  be  pre- 
sumptive evidence   of  the   facts  con 

138 


tained  in  the  certificate,  unless  the 
defendant  shall  annex  to  his  plea  an 
affidavit  denying  the  fact  of  having 
received  notice  of  non-payment  of 
such  note.  Here  the  defendant  served 
an  affidavit  denying  the  receipt  by 
him  of  notice  of  non-payment,  but  it 
was  not  annexed  to  his  answer,  and 
hence  cannot  have  the  effect  men- 
tioned in  the  statute.  It  is  claimed, 
however,  that  the  sworn  answer  of  the 
affidavit  was  an  answer  within  the 
meaning  of  the  statute.  This  claim 
is  not  well  founded.  This  answer  is 
verified  in  the  usual  way,  the  affiant 
affirming  that  it  is  true  of  his  own 
knowledge,  except  as  to  the  matters 
stated  on  information  and  belief,  and 
as  to  such  matters  that  he  believes  it 
to  be  true.  When  a  defendant  veri- 
fies an  answer  in  this  way,  it  is  im- 
possible to  tell  what  facts  he  states 
upon  his  own  knowledge,  and  what 
upon  information  and  belief.  An  affi- 
davit denying,  upon  information  and 
belief,  the  receipt  of  notices,  would 
not  answer  the  requirements  of  this 
statute.  To  destroy  the  effect  of  the 
certificates  of  the  notary  as  presump- 
tive evidence,  the  defendant  must 
deny  positively  the  receipt  of  notice." 
Earl,  C,  Gawtry  t>.  Doane,  51  N.  Y. 
89. 

*  Commercial    Bk.    i'.    Yarnum,    3 
Lansing,  86. 


CHAP.  III.]  notaries'  certificates.  [§  127. 

general  but  pertinent.^  The  entries  of  a  deceased  notary,  in  the 
course  of  his  business,  are,  as  is  elsewhere  seen,  admissible.^ 

§  125.  The  general  rule,  says  Mr.  Taylor,*''  is  that  a  duplicate, 
made  out  at  an}'^  time  from  the  original  or  protocol  in   Duplicate 
the  notarial  book,  is  equivalent   to  an  orifjinal  drawn   protestsare 

^  ^  c5  admissible 

up  at  the  time  of  the  entry  in  the  book.  If,  therefore,  as  original. 
a  foreign  bill  of  exchange  be  protested  for  non-payment,  or  if 
it  be  paid  under  protest  for  the  honor  of  an  indorser,  the  fact  of 
the  protest  may  be  jjrimarily  established,  not  only  by  producing 
a  formal  instrument  of  protest,  extended  by  the  notary  from 
his  register  at  the  date  of  the  actual  protest,  but  by  putting  in 
evidence  a  duplicate  protest,  even  though  it  may  have  been 
drawn  up  after  the  commencement  of  the  action,  provided  that 
the  entries  in  the  notary's  book, can  be  shown  to  have  been  made 
at  the  time  when  the  transactions  occurred.* 

§  126.  In  England,  under  the  acts  authorizing  the  registration 
of  deeds,  in  Yorkshire  and   Middlesex,  the  registrars    ^ 

'      .  .  .  .         '  ^  Searches 

are  bound,  if  required,  to  give  certificates  of  searches,  of  deeds 
and  also  certified  copies  of  any  recorded  or  registered 
documents  within  the  purview  of  the  statute.  Tlie  certificates 
must  be  under  the  hand  of  the  registrar,  testified  to  by  two  cred- 
ible witnesses.^  In  Pennsylvania  it  has  been  held  admissible  to 
prove  by  a  certificate  of  the  proper  recorder  or  register,  that  he 
has  searched  in  his  office  for  a  particular  paper,  without  being 
able  to  find  it.^ 

§  127.  Public  documents  cannot,  without  great  inconvenience 
to  the  pviblic,  be  put  in  evidence  in  their  originals."    It   q^^-^^^  ^f 

has  been  consequently  held  that  such  documents,  like    i'i'''ii'-- doc- 
^  J  '    _        iiiiu'iits  re- 

statutes,  may  be  proved  by  the  printed  volumes  in  which   ceivaUio. 

they  are  published  by  authority.^ 

"  1  Ocean  lik.  v.  Williams,  102  INIass.  Ware,  109  ]\Ia?s.  218,  and  oases  cited 

HI.  supra,  §  120. 

2  Infra,  §  251.  'See  Carpenter  v.  Dexter,  8  Wall. 

8  Ev.  §  394.  513. 

*  Ceralopulo  v.   Wieler,    10   C.   B.  »  Supra,  §  108;  infra,  §317;  Wat- 

712.  kins  v.  Ilolnian,  IG  Pet.  2G  ;  Bryan  r. 

6  Taylor's  Ev.  §  14G1.      See  supra,  Forsyth,  19  How.  U.  S.  331;  (Jrejj:;,'  r. 

§80.  Forsyth,  21  How.  U.  S.  179;  Whiton 

«  Weidman   r.  Kohr,  4    Ser^x-   &  H-  ''•  ^"i*-   Co.  109   Mass.  21  ;   Dntillet  i-. 

174.       See,    however,    Wayland     v.  Blunehard,  14   La.   An.  97  ;  Ni.\on  v. 

139 


§  129.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


IV. 


SECONDARY  EVIDENCE  MAY   BE  RECEIVED  WHEN  PRDIARY  IS 
UNPRODUCIBLE. 


§  129.  Whei'e  a  document  (and  under  this  head  fall  deeds, 
Loptor  records,  letters,  notes,  accounts,  wills)  is  lost  or  de- 
dofument  ^troyed  without  any  suspicion  of  spoliation  attaching 
may  be  to  the  party  offering  to  prove  it  by  parol  evidence,  then 
parol.  such  parol  evidence  is  admissible  to  prove  its  contents, 

it  appearing  that  due,  but  fruitless,  efforts  have  been  made  to 


Porter,  34  Miss.  G9  7.  As  to  foreign 
public  documents  promulgated  in  the 
United  States,  see  supra,  §  108  ;  infra, 
§317. 

In  England,  royal  proclamations, 
and  orders  and  regulations  issued  un- 
der the  authority  of  government,  may 
be  proved,  like  other  public  docu- 
ments, by  jiroducing  either  their  orig- 
inals, or  examined  copies  ;  and  in 
addition  to  these  obvious  modes  of 
proof,  others  have  been  afforded  and 
defined  by  "  The  Documentary  Act, 
1868"  (2B1.  Com.  34fi).  Sec.  2  of  that 
useful  statute  enacts  that  ^^  prima  facie 
evidence  of  any  proclamation,  order, 
or  regulation  (this  act  is  made  spe- 
cially applicable  to  '  any  regulation 
made  by  the  secretary  of  state  in  pur- 
suance of '  the  Naturalization  Act, 
1870,  33  &  34  Vict.  c.  14,  §  12,  subs. 
5),  issued  before  or  after  the  passing 
of  this  act  by  or  under  the  authority 
of  any  such  department  of  the  gov- 
ernment, or  officer,  as  is  mentioned 
in  the  first  column  of  the  schedule 
hereto,  may  be  given  in  all  ccurLs  of 
justice,  and  in  all  legal  proceedings 
whatsoever,  in  all  or  any  of  the 
modes  hereinafter  mentioned,  that  is 
to  say :  — 

"  (1.)  By  the  production  of  a  copy 
of  the  Gazette  purporting  to  contain 
such  proclamation,  order,  or  regula- 
tion. 

"  (2.)  By  the  production  of  a  copy 
of  such  proclamation,  order,  or  regu- 

140 


lation  issued  by  Her  Majesty  or  by  the 
Privy  Council,  of  a  copy  or  extract 
purporting  to  be  certified  to  be  true 
by  the  clerk  of  the  Privy  Council,  or 
by  any  one  of  the  lords  or  others  of 
the  Privy  Council,  and,  in  tlie  case  of 
any  pi-oclamation,  order,  or  regulation, 
issued  by  or  under  the  authority  of 
any  of  the  said  departments  or  offi- 
cers, by  the  production  of  a  copy  or 
extract  purporting  to  be  certified  to 
be  true  by  the  person  or  persons  spe- 
cified in  the  second  column  of  the  said 
schedule,  in  connection  with  such  de- 
partment or  officer. 

"  Any  copy  or  extract  made  in  pur- 
suance of  this  act  may  be  in  print  or 
in  writing,  or  partly  in  print  and  partly 
in  writing. 

"  No  proof  shall  be  required  of  the 
liandwriting  or  official  position  of  any 
person  certifying,  in  pursuance  of  this 
act,  to  the  truth  of  any  copy  of  or  ex- 
tract from  any  proclamation,  order,  or 
regulation." 

Sees.  3  and  4  relate  to  matters  of 
minor  importance.  Sec.  5  enact?,  that 
"  the  following  words  shall  in  this  act 
have  the  meaning  hereinafter  assigned 
to  them,  unless  there  is  something  in 
the  context  repugnant  to  such  con- 
struction (that  is  to  say)  :  — 

"  '  British  colony  and  possession  ' 
shall  for  the  purposes  of  this  act  include 
tlie  Channel  Islands,  the  Isle  of  Man, 
and  such  territories  as  may  for  the  time 
being  be  vested  in  Her  Majesty,  by 


CHAP.  III.] 


PROOF    OF   LOST   DOCUMENTS. 


[§  129. 


produce  it  in  court ;  ^  though,  if  the  instrument  were  executed  in 
duplicate  or  triphcate,  &c.,  the  loss  of  all  the  parts  must  be 
proved,  in  order  to  let  in  secondary  evidence  of  its  contents. ^ 
But  this  exception  does  not  from  its  very  limitations  apply  to  cases 

virtue  of  any  act  of  parliament  for  the  been  published  by  authority  there,  as 
government  of  India  and  all  other  Her  a  regular  copy  of  the  ai'chives  in  Wash- 
Majesty's  dominions  :  ington  ;  and  it  was  further  proposed  to 

"  '  Legislature  '  shall  signify  any  au-  prove,  by  the  American  minister  resi- 
thority,  other  than  the  Imperial  Par-  dent  at  this  court,  that  the  book  was 
liament  or  Her  Majesty  in  Council,  the  rule  of  his  conduct.  Lord  Ellen- 
competent  to  make  laws  for  any  colony  borough  rejected  the  evidence,  observ- 
or  possession  :  ing  that  he  would   not  have  admitted 

" '  Privy  Council '  shall  include  Her  a  book   of   Spanish  treaties,   though 

Majesty  in  Council,  and  the  lords  and  proved  to  have  been  printed  by  the 

others  of  Her  Majesty's  Privy  Council,  king's  printer  in  that  country.     Rich- 


or  any  of  them,  and  any  Committee  of 
the  Privy  Council  that  is  not  specially 
named  in  the  schedule  hereto  : 

"  '  Government  printer  '  shall  mean 


ardson  v.  Anderson,  1  Camp.  65,  note  a. 

1  Doe  V.  Wittcomb,  G  Exc.  R.  601  ; 

R.  V.  Johnson,   7  East,  6G ;  Brewster 

V.  Sewell,  3  B.  &  A.  303  ;  U.  S.  v.  Rey- 


and  include  the  printer  to  Her  Majesty,     burn,  6  Pet.  352;  Winn  v.  Patterson,  d 


and  any  printer  purporting  to  be  the 
printer  authorized  to  print  statutes, 
ordinances,  acts  of  state,  or  any  other 
public  acts  of  the  legislature  of  any 
British  colony  or  possession,  or  other- 


Pet.  663  ;  Renner  v.  Bank,  a  Wheat. 
581  ;  Butler  v.  Maples,  9  Wall.  766  ; 
Hedrick  v.  Hughes,  15  Wall.  123; 
Small  V.  Pennell,  31  Me.  267;  Tucker 
V.   Bradley,   33    Vt.  324 ;   Oatman  v. 


wise,  to  be  the  government  printer  of     Barney,  46  Vt.  594;    Jones  v.  Fales, 


such  colony  or  possession: 

"  '  Gazette  '  shall  include  '  The 
London  Gazette,'  '  The  Edinburgh 
Gazette,'  and  '  The  Dublin  Gazette,' 
or  any  of  such  gazettes." 

Sec.  6  enacts,  that  the  provisions  of 
this  act  shall  be  deemed  to  be  in  addi- 
tion to,  and  not  in  derogation  of,  any 
powers  of  proving  documents  given 
by  any  existing  statute  or  existing  at 
common  law."     Taylor's  Ev.  §  1371  a. 

So,  all  proclamations,  treaties,  and 
other  acts  of  state  of  any  foreign  state 
or  of  any  British  colony,  may  be 
proved  either  by  examined  copies,  or 
by  copies  purporting  to  bear  the  seal 
of  the  state  or  colony  to  which  they  re- 
spectively belong.  14  &  15  Vict.  c.  75. 
In  one  case,  where  a  book  was  ten- 
dered in  evidence  which  purported  to 
be  a  collection  of  treaties  concluded 
by  America,  and  was  declared  to  have 


5  Mass.  101 ;  Pruden  i-.  Alden,  23  Pick. 
184;  Augur  v.  Whittier,  118  Mass. 
532;  Chamberlin  v.  Man.  Co.  118 
Mass  532 ;  Livingston  r.  Rogers,  1 
Caines,  27,  488;  Ford  c.  Wadsworth, 
19  Wend.  334;  Enders  v.  Sternbcrgh,  2 
Abb.  (N.  Y.)  App.31  ;  McReynoldsu. 
Longenberger,  5  7  Penn.  St.  13;  Kaul 
V.  Lawrence,  73  Penn.  St.  410;  Hay- 
ward  L\  Carroll,  4  liar.  &  J.  518;  Allen 
V.  Parish,  3  Ohio,  107  ;  Sanders  c  San- 
ders, 24  Ind.  133;  RichKy  r.  Farreli, 
69  111.  264  ;  Wickenkamp  r.  Wiiken- 
kanip,  7  7  111.  92;  Marlow  r.  !Mariow, 
77  111.  633;  Bagiey  r.  McMickle,  9 
Cal.  430;  Pollock  r.  Wilcox,  68  N. 
C.  46;  Nolen  r.  Gwyn,  16  Ala.  725; 
Gracie  i'.  Morris,  22  Ark.  415. 

2  R.   r.    Castleton,  6  T.  R.  236;  B. 
N.  P.  2.')4;  Alivon  r.  Fnniival,  1  C,  M. 

6  R.  292.      Supra,  §  74. 

141 


§  130.] 


THE   LAW   OF   EVIDENCE. 


[nOOK  I. 


where  tlio  party  could  in  any  way  procure  tlie  paper.  Thus  it  has 
been  held  intidnussible  for  a  party  to  prove  by  parol  a  paper  sent 
by  him  to  the  clerk  of  the  proper  public  office  to  be  recorded. ^ 
§  130.  Secondary'  evidence  may  also  be  offered  to  prove  the 
substance  of  a  document  which  it  is  out  of  the  power  of 
the  party  to  produce. ^  This  right  has  been  held  to  ap- 
ply to  papers  in  the  hands  of  an  attorney  wlio  could  not 
be  compelled  to  deliver  them  up,^  though  it  is  other- 
wise if  the  delivery  could  be  compelled;*  to  papers  fraudulently 
concealed  by  the  opposite  party  ;  ^  to  papers  out  of  the  jurisdic- 
tion of  the  court ;  ^  provided  due  efforts  be  made  to  obtain  the 
deposition  of  the  person  holding  the  papers.'^ 


So  of  pa- 
pers out 
of  power  of 
party  to 
produce. 


^  HaAvkins  v.  Rice,  40  Iowa,  435; 
Allen  V.  Parish,  3  Ohio,  107. 

2  Dyer  v.  Smith,  12  Conn.  384;  Den- 
ton V.  Hill,  4  Hay  w.  73 ;  Cooper  v.  Day, 
1  Rich.  S.  C.  Eq.  26. 

3  Lynde  c.  Judd,  3  Day,  499. 
*  Bird  V.  Bird,  40  Me.  392. 

6  Marlow  v.  Marlow,  77  111.  633. 

«  Burton  v.  Driggs,  20  Wall.  133; 
Burnham  v.  Wood,  8  N.  H.  334;  Beat- 
tie  r.  Hilliard,  55  N.  H.  428;  Binney 
V.  Russell,  109  Mass.  55;  Forrest  v. 
Forrest,  6  Duer,  102;  Black  v.  Cam- 
den R.  R.  45  Barb.  40;  Ralph  v. 
Brown,  3  Watts  &  S.  395;  Moody  v. 
Com.  4  Mete.  (Ky.)  1 ;  Underwood  v. 
Lane,  1  Dev.  (N.  C.)  173;  Lunday  v, 
Thomas,  26  Ga.  537;  Shorter  v.  Shep- 
pard,  33  Ala.  648  ;  Brown  v.  Wood, 
19  Mo.  475  ;  Gordon  v.  Searing,  8 
Cal.  49. 

''  McGregors.  Montgomery,  4  Penn. 
St.  237;  Dickinson  u.  Breeden,  25  111. 
186;  Wood  v.  Cullen,  13  Mnn.  394. 

"  The  next  assignment  of  error  is 
the  admission  in  evidence  '  of  such 
parts  of  the  deposition  of  A.  L.  Tur- 
ner and  C.  P.  Steers  as  refer  to  what 
appeared  or  did  not  appear  on  the 
books  of  the  Tioga  County  Bank.' 
It  was  shown  by  the  plaintiff  in  this 
connection  that  the  books  in  question 
were  in  the  village  of  Tioga,  Pennsyl- 

142 


vania,  that  the  plaintiff  had  endeav- 
ored to  obtain  them  for  use  on  this 
trial,  and  that  those  having  the  cus- 
tody of  them  refused  to  permit  them 
to  go.  The  testimony  of  Turner  was, 
in  substance,  that  he  wasca^hier;  that 
he  had  examined  the  books  and  pa- 
pers in  the  bank  relating  to  its  affairs 
from  its  organization  down  to  July, 
1859,  and  that  he  found  no  evidence 
of  any  kind  that  the  defendant  ever 
had  any  connection  or  transaction 
with  the  bank,  or  any  interest  in  it 
whatever;  and  that  subsequently,  at 
the  request  of  the  plaintiff  and  for  the 
purposes  of  this  suit,  he  repeated  the 
examination  with  the  same  result. 
Steers  testified  that  he  was  cashier  of 
the  bank  from  about  the  15  th  of  Sep- 
tember, 1858,  to  about  the  29th  of 
April,  1859,  and  that  during  that  time 
the  defendant.  Burton,  did  not  furnish 
to  the  bank  $7,060.18,  or  any  other 
sum  of  money ;  that  his  name  was  never 
on  the  books  of  the  bank,  nor  did  the 
bank  owe  him  anything  on  any  ac- 
count during  that  period,  and  that  the 
witness  did  not  think  his  name  ap- 
peared on  the  books  of  the  bank  as  a 
stockholder  during  that  time.  The 
books  being  out  of  the  state  and  be- 
yond the  jurisdiction  of  the  court, 
secondary   evidence    to    prove    their 


CHAP.  III.]  PROOF   OF   LOST   DOCUMENTS.  [§  133. 

§  131.  The  same  recourse  is  allowed  whenever,  for  technical 
grounds,  the  original  cannot  be  produced.  "  As  soon  as  a  party 
has  accounted  for  the  absence  of  the  original  document,  he  is  at 
liberty  to  give  any  kind  of  secondary  evidence.  The  rule  is, 
that  no  evidence  is  to  be  adduced  which  ex  naturd  rei  supposes 
still  greater  evidence  behind  in  the  party's  own  power  and  pos- 
session ; "  1  and  therefore  oral  evidence  of  an  original  may  be 
substituted  for  an  attested  copy,  which  was  tendered  but  rejected 
for  want  of  a  stamp.^  The  same  right  attaches  as  to  instruments 
of  the  possession  of  which  a  party  is  deprived  by  fraud.^ 

§  132.  Yet  it  does  not  follow  that  because  the  paper  is  de- 
stroyed by  the  party  himself,  that  secondary  proof  Accidental 
of  its  contents  is  inadmissible.     Undoubtedly  such  is   tiestruction 

•^  _  of  a  ilocu- 

the  case  if  the  destruction  was  fraudulent  on  his  part.*   ">eiit  by  a 

.  .  .  .  parlv  docs 

it  IS  otherwise,  however,  when  it  was  innocent  or  cas-    not  ine- 
ual.^     Nor  does  it  exclude  such  proof  that  the   original    Uii's 'i-esort. 
was  destroyed  with  the  consent  of  both  parties.^ 

§  133.  When  a  document  is  lost,  a  press  copy  or  a  photograph ' 
of  such  document,  has,  as  has  been  already  noticed,  high   Copies  of 
probative  value.     Next  in  value  are  copies  sworn  to  as   fi"|^!',',„',"r,'tg 
accurate  by  those   by   whom  they  were  made.     Such    'ci^LivabJe. 
copies,   when    so  sworn   to,  are   necessarily  more  reliable   than 
memoriter  statements  of  the  contents  of  a  document."     Thus,  a 

contents  was  admissible.     When  it  is  ^  Ibid.     See   Ilutchins  v.    Scott,  2 

necessary  to  prove  the  results  of  vo-  IM.  &  W.  809;  Runisey  v.  Sargent,  21 

luminous  facts  or  of  the  examination  N.  II.  397;  Lea  v.  Hopkins,  7  Penn. 

of  many  books   and    papers,  and  the  St. 492;  Hickey  u.  Hinsdale,  12  Mich, 

examination  cannot    be    conveniently  99;    and    other   cases    cited   inira,   § 

made   in   court,    the   results    may  be  1121. 

proved  by  the  person  who  made  the  ^  Infra,  §§  1204-70;  Grimes  c  Kim- 

exaniination.       1      Greenleaf's     Evi-  ball,  3  Allen,  518;  Heed   v.  Ditkey,  1 

dence,  §    93.       Here    the  object  Avas  Watts,  152. 

to  prove  not  that  the  books  did,  but  *  See  infra,  §§  12G4-70. 

that  they  did  not  show  certain  things.  ^  l^'!^?''    "•  Tayloe,  9   AVheat.  483; 

The  results  sought  to  be  established  Tobin  r.  Sbaw,  45  Me.  331  ;  Stoddard 

were  not  aflirmative,  but  n(>gative.    If  v.    Mix,    14  Conn.   12;  Sturtevant  v. 

such  testimony  be  competent  as  to  the  Hobinson,  18  Pick.  1 75  ;  Orne  c.  Cook, 

former,  a  mitllo  forliori  must  it  be  so  31  III.  238  ;  Adams  r.  (Juice,  30  Miss, 

to   prove   the    latter."     Swayue,    J.,  397;  Bagley  r.  RIcMickle,  9  Cal.  130; 

Burton  v.  Driggs,  20  Wallace,  133.  Pco{)le  v.  Dennis,  4  Mich.  (i09. 

1  Per  Parke,  B.,  Doe  v.  Boss,  7  M.  «  (Jould  i-.  Lee,  55  Peiin.  St.  99. 

&  W.  102.  ''   Winn  v.  Patler.sou,    9   Pet.   GC3  ; 

143 


§  135.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


Abstracts 
and  sum- 
maries in 
such  cases 
receivable 


letter  book  of  a  party,  sworn  to  by  himself  or  his  clerk,  will  be 
received  as  proof  of  the  contents  of  a  lost  letter  ;  ^  nor  will  a 
party  who  has  or  may  obtain  such  a  copy,  but  withholds  it,  be 
permitted  to  prove  jDortions  of  such  letter,  or  give  orally  its  im- 
perfect substance.2  But  even  a  letter-press  copy  cannot,  it  is 
said,  be  treated  as  an  original.^  And  a  copy  must  be  proved  by 
a  witness  who  has  compared  it  with  the  lost  original.*  A  copy 
of  a  copy,  it  need  scarcely  be  added,  is  inadmissible.^ 

§  184.  In  default  of  better  proof  of  the  contents  of  lost 
papers,  a  Avitness,  in  supplying  such  contents,  may  re- 
fresh his  memory  by  abstracts  whose  correctness  he  can 
verify.^  So  the  minvites  of  the  acknowledgment  of  a 
treasurer's  deed,  kept  by  a  prothonotary,  have  been  re- 
ceived in  order  to  prove  such  deed  when  lost.'^  So  the  drafts 
from  which,  by  indorsements  upon  them,  it  appeared  that  certain 
deeds  were  engrossed,  have  been  held  good  secondary  evidence 
of  the  contents  of  such  deeds.^  So  the  abstracts  of  deeds  shown 
to  have  been  destroyed  by  fire  have  been  properly  received.^ 

§  135.  The  same  liberty  to  reproduce  is   applied  to  records. 
So  as  to        When  lost  or  destroyed,  they  may  be  proved  either  by 
copy,  or  by  the  recollection  of  witnesses.^'^    In  such  case, 

^  Halsey  v.  Blood,  29  Penn.  St.  319. 

8  Waldy  V.  Gray,  L.  R.  20  Eq.  250; 
23  W.  R.  67G  ;  44  L.J.  Ch.394.  Pow- 
ell's Evidence,  4th  ed.  352. 

9  Richley  v.  Farrell,  69  111.  264. 

10  Hedrick  i-.  Hughes,  15  Wall.  123; 
Cornett  v.  Williams,  20  Wall.  226; 
Gore  V.  Elwell,  22  Me.  442  ;  Foster  v. 
Dow,  29  Me.  442;  Heywood  v.  Charles- 
town,  43  N.  H.  01;  Brown  v.  Rich- 
mond, 28  Vt.  583  ;  Thayer  v.  Stearns, 
1  Pick.  109;  Com.  v.  Roark,  8  Cush. 
210;  Farmers'  Bk.  i7.  Gilson,  6  Penn. 
St.  51;  Huzzard  v.  Trego,  35  Penn. 
St.  9;  Miltimore  v.  Miltimore,  40  Penn. 
St.  154;  Clark  v.  Trindle,  52  Penn.  St. 
492;  McKee  v.  McKee,  16  Md.  516; 
Smith  V.  Wilson,  17  Md.460;  Smith  c. 
Carter,  3  Rand.  167;  Young  v.  Buck- 
ingham, 5  Ohio,  485;  Ellis  v.  Hurt",  29 
JU.  449;  Read  v.  Staton,  3  Hayw.  159  ; 
State  V.  Hare,  70  N.  C.  658;  McQueen 


records. 


Evans  v.  Boiling,  8  Port.  (Ala.)  546  ; 
Williams  v.  Waters,  36  Ga.454;  Peirce 
V.  Bank,  1  Swan,  265.  See  fully,  su- 
pra, §  90. 

1  Supra,  §  93. 

2  Dennis  v.  Barber,  6  Serg.  &  R. 
420;  Merritt  w.  Wright,  19  La.  An. 
91.  See,  however,  as  to  degrees  of 
secondary  evidence,  supra,  §  90. 

8  Chapin  v.  Siger,  4  McL.  378 ; 
Merritt  v.  Wright,  14  La.  An.  91. 
See  supra,  §  90. 

*  McGinniss  v.  Sawyer,  63  Penn.  St. 
259.    See  supra,  §  94. 

5  Foot  V.  Bentley,  44  N.  Y.  171 ;  Ever- 
ingham  v.  Roundell,  2  M.  &  Rob.  138; 
Liebman  v.  Pooley,  1  Stark.  R.  167. 

6  Burton  v.  Driggs,  20  Wall.  133 
(cited  fully  infra,  §  137)  ;  Sizer  v. 
Burt,  4  Denio,  426  ;  Ins.  Co.  t'.  Weide, 
9  Wall.  67  7;  May  son  v.  Beazley,  27 
Miss.  106.     See  infra,  §  516  et  seq. 

14  i 


CHAP.  III.] 


LOST   DOCUMENTS. 


[§  136. 


if  there  be  a  certified  copy  extant,  that  should  be  produced, ^  to 
tax  books,2  to  the  minutes  of  a  parish  meeting  ;  ^  to  acts  of  in- 
corporation,* and  to  government  grants.^ 

§  136.  Hence  a  copy,  when  verified,  may  be  received  as  a 
substitute  for  a  lost  record,  loss  being  duly  proved.^  So  where  a 
record  has  become  illegible  from  wear  and  lapse  of  time,  a  wit- 


V.  Fletcher,  4  Rich.  (S.  C.)  152;  Allen 
V.  State,  ■2lGa.  217;  Bridges  v.  Thomas, 
50  Ga.  3  78;  McDade  v.  Meed,  18  Ala. 
2l4;  Derrett  v.  Alexander,  25  Ala. 
2G5;  Saloy  v.  Leonard,  15  La.  An. 
391  ;  Eakin  v.  Vance,  10  Sm.  &  M. 
549;  Martin  v.  Williams,  42  Miss.  210; 
Fowler  v.  More,  4  Ark.  570;  Norris  v. 
Russell,  5  Cal.  249 ;  Rice  v.  Poynter, 
15  Kans.  263;  Bartlett  v.  Hunt,  17 
Wise.  214. 

^  "  The  secondary  proof  of  the 
judgment  in  favor  of  H.  H.  Williams, 
against  Samuel  M.  Williams,  was 
properly  admitted.  The  original  rec- 
ord was  destroyed  by  fire  in  the  year 
1862.  The  proof  in  question  con- 
sisted of  a  copy  of  a  copy  of  the 
judgment,  the  latter  duly  certified  by 
the  clerk  of  the  court  by  whom  the 
judgment  was  rendered.  It  was  proved 
that  the  certified  copy  had  been  de- 
stroyed. The  judgment  in  question 
was  recovered  upon  a  prior  judgment 
in  favor  of  the  same  plaintiiF  against 
the  same  defendant.  There  was  evi- 
dence tending  to  show  that  a  certified 
copy  of  the  latter  existed,  but  it  was 
not  positive.  There  was  no  proof  of 
the  existence  of  such  a  copy  of  the 
judgment  sought  to  be  proved.  There 
was  a  discrepancy  as  to  a  single  word 
in  the  copy  offered  in  evidence.  It 
set  forth  that  the  clerk  had  assessed 
the  damages  at  '  forty-three  thousand 
nine  hundred  and  sixty-six.  dollars  and 
thirty-four  cents,  and  that  it  was, 
therefore,  considered  by  the  court  that 
the  plaintiff'  recover  of  the  defendant 
the  sum  of  forty-three  thousand  nine 
hundred    and    thirly-six.   dollars    and 

VOL.   I.  10 


thirty-four  cents,'  &c.  It  was  satis- 
factorily proved  aliunde  that  thirty, 
instead  of  sixty,  was  correct,  the  latter 
being  a  mistake  of  the  copyist.  The 
principle  established  by  this  court  as 
to  secondary  evidence  in  cases  like 
this  is,  that  it  must  be  the  best  the 
party  has  it  in  his  power  to  produce. 
The  rule  is  to  be  so  applied  as  to  pro- 
mote the  ends  of  justice  and  guard 
against  fraud,  surprise,  and  imposi- 
tion. Renner  v.  Bank,  9  Wheaton,  597; 
1  Greenl.  Ev.  §  84,  and  note.  The 
copy  here  in  question  was  properly 
admitted.  Winn  i;.  Patterson,  9  Peters, 
6  76.  This  court  has  not  gone  the 
length  of  the  English  adjudications, 
which  hold,  without  qualification,  that 
there  are  no  degrees  in  secondary  evi- 
dence. Doe  d.  Gilbert  v.  Ross,  7 
Mees.  &  Wels.  106."  Swnyne,  J., 
Cornett  v.  Williams,  20  Wallace,  245  ; 
S.  P.,  Piatt  V.  Haner,  27  Mich.  167. 
See  supra,  §  90. 

2  Pittsfield  V.  Barnstcad,  38  N.  II.  11 5. 

8  Wallace  v.  First  Parish,  109  Mass. 
263. 

*  Stockbridge  v.  West  Stockbridge, 
12  Mass.  400;  Blackstone  v.  White, 
41  Penn.  St.  330. 

6  U.  S.  V.  Uelespine,  12  Pot.  654; 
Lacey  v.  Davis,  4  ^licb.  140;  Ilallet  v. 
Eslava,  3  St.  &  P.  105;  Phillips  v. 
Beene,  16  Ala.  720. 

«  U.  S.  V.  Delespine,  12  Pet.  654; 
Kelsey  v.  Hammer,  18  Conn.  311; 
Blackstone  v.  White,  41  Penn.  Su 
530;  Lipscomb  r.  Postell,  3S  Miss. 
476  ;  Wiiletts  i'.  Mandlebaiim,  2S  Mich. 
621;  Hill  u.. Parker,  5  Rich.  (S.  C.) 
87;  White  v.  Barney,  27  Tex.  50. 

145 


§  137.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


ness  who  has  examined  and  copied  it  when  Legible  may  be 
called  to  supply  the  defect.^  But  parol  evidence  will  not  be 
received  of  a  record  of  which  only  part  is  lost.  That  which  still 
exists  must  be  produced  or  exemplified.^  Nor  is  a  party  per- 
mitted to  prove  orally  a  record  of  which  he  could  obtain  an  office 
copy  unless  the  record  be  shown  to  be  lost  so  that  the  office  copy 
is  unattainable.^  A  fortiori  does  this  rule  exist  where  the  non- 
production  of  the  original  is  owing  to  the  conduct  of  the  opposing 
party.*  Lost  fragments  of  record,  as  ^\Q  will  elsewhere  see,  may 
be  supplied  by  certificate.^  Ordinarily,  liowever,  no  summary 
of  a  record  is  admissible.*^     The  whole  must  be  exemplified. 

§  137.  Under  this  rule  depositions  in  the  same  case, 
which  depositions  it  is  out  of  the  power  of  the  party 
to  produce  on  trial,  may  be  proved  by  copy  in  such  trial 
when  the  witness  whose  deposition  is  thus  secondarily 
proved  is  out  of  the  jurisdiction  of  the  court.'^ 


Lost  depo 
sitions  of 
witness  in 
another 
state  may 
be  thus 
proved. 


1  Little  0.  Downing,  37  N.  H.  355. 
See  Coffeen  v.  Hammond,  3  Gr.  (Iowa) 
241. 

'^  Nims  V.  Jolinson,  7  Cal.  110. 

8  New  York  Co.  v.  Richmond,  6 
Bosw.  213;  Higgins  v.  Reed,  8  Iowa, 
298;  Edwards  v.  Edwards,  11  Rich. 
(S.  C.)  537.     See  supra,  §  90. 

<  Infra,  §§  1264-70;  Thayer  v. 
Stearns,  1  Pick.  109;  Gaines  v.  Kim- 
ball, 3  Allen,  518;  Meyer  v.  Barker, 
6  Binn.  228  ;  Reed  v.  Dickey,  1  Watts, 
152  ;  Blevins  v.  Pope,  7  Ala.  371 ;  Bell 
V.  Hearne,  10  La.  An.  515. 

s  See  infra,  §  828;  supra,  §  95; 
Hawkins  v.  Craig,  1  B.  Mon.  27;  Cof- 
feen V.  Hammond,  3  Gr.  (Iowa)  241. 

^  Armstrong  v.  Boylan,  1  South.  (N. 
J.)  76  ;  Jay  v.  East  Livermore,  56 
Me.  107.  See  fully,  infra,  §§  824- 
829  ;  and  supra,  §  95. 

'  This  position  is  thus  explained  in 
the  following  opinion  of  the  supreme 
court  of  the  United  States  :  — 

"  The  first  assignment  of  error  re- 
lates to  the  admission  in  evidence  of 
a  copy  of  the  deposition  of  Vine  De 
Pue.     The  bill  of  exceptions  sets  forth 

146 


that  the  original  deposition  was  regu- 
larly taken,  sealed  up,  and  transmitted 
to  the  clerk  of  the  court  where  the 
cause  was  pending,  and  by  him  prop- 
erly opened  and  filed  ;  and  that  there- 
after it  was  lost  and  could  not  be 
found ;  and  that  the  copy  offered  was 
a  true  copy,  taken  under  the  direction 
of  the  clerk,  and  by  him  compared 
and  certified.  The  exception  is  as 
follows  :  '  The  defendant  objected  to 
the  copy  on  the  ground  that  it  was  not 
the  original.  The  court  overruled  the 
exception  and  admitted  the  deposition, 
to  which  decision  the  defendant  ex- 
cepted.' 

"It  is  a  rule  of  law  that,  where  a 
party  excepts  to  the  admission  of  tes- 
timony, he  is  bound  to  state  his  objec- 
tion specifically,  and  in  a  proceeding 
for  error  he  is  confined  to  the  objec- 
tion so  taken.  If  he  assigns  no  ground 
of  exception,  the  mere  objection  can- 
not avail  him.  Camden  (;.  Doremus, 
3  Howard,  515  ;  Hinde's  Lessee  v. 
Longworth,  11  Wheat.  199.  In  Hinde's 
Lessee  v.  Longworth,  this  court  said  : 
'  As  a  general  rule,  we  think  the  party 


CHAP.  III.] 


LOST   DOCUMENTS. 


[§  138. 


§  138.  Even  where  a  will,  which  has  been  duly  executed,  has 
been  lost,  parol  evidence  is  admissible  to  show  that  the    p^^^j  ^. 
loss  did  not  arise  from  an  intention  of  revocation  on  the    deuce  ad- 

1     1  •  Ml     •  mi^s'i'ile  to 

testator  s  part,  but  that  he  believed  that  it  was  still  in    establish 
existence   at  the  time  of  his  death.     In  such  case,  on 


ought  to  be  confined,  in  examining  the 
admissibility  of  evidence,  to  the  spe- 
cific objection  taken  to  it.  The  atten- 
tion of  the  court  is  called  to  the  testi- 
mony in  that  point  of  view  only.' 
Here  the  objection  was  that  the  copy 
was  not  the  original.  This  as  a  fact 
was  self-evident ;  but  as  a  ground  of 
objection  it  was  wholly  indefinite.  It 
does  not  appear  to  have  been  sug- 
gested that  the  place  of  the  lost  depo- 
sition could  only  be  supplied  by  an- 
other one  of  the  same  witness  retaken, 
and  that  secondary  evidence  was  in- 
admissible to  prove  the  contents  of 
the  ibrmer.  If  the  contents  of  the 
one  lost  could  be  proved  at  all  by  such 
evidence,  that  offered  was  certainly 
admissible  for  that  purpose.  But  the 
objection  was  presented  in  the  argu- 
ment before  us  in  the  latter  shape, 
and  we  shall  consider  it  so  accord- 
ingly. 

"  It  is  an  axiom  in  the  law  of  evi- 
dence that  the  contents  of  any  written 
instrument  lost  or  destroyed  may  be 
proved  by  competent  evidence.  Judi- 
cial records  and  all  other  documents 
of  a  kindred  character  are  within  the 
rule.  Renner  v.  Bank  of  Columbia, 
9  Wheaton,  581  ;  Riggs  v.  Tayloe,  Ibid. 
483  ;  1  Greenl.  Evidence,  §  509.  But 
it  is  said  a  different  rule  as  to  deposi- 
tions —  unless  the  witness  be  dead  — 
obtains  in  Vermont,  and  the  cases  of 
Follett  V.  Murray,  17  Vt.  530,  and 
Low*  V.  Peters,  36  Vt.  177,  arc  re- 
ferred to  as  supporting  the  exception. 
Those  cases  are  unlike  the  one  before 
us.  In  Follett  v.  Mun-ay  the  witness 
resided  within  the  state,  and,  there 
being  no  cojjy  of  the  caption,  it  iliil 


not  appear  that  the  deposition  had 
been  regularly  taken.  In  the  other 
case  the  witness  was  dead,  and  no 
question  was  raised  as  to  any  defect 
in  the  lost  original.  The  copy  was, 
therefore,  admitted  as  of  course.  If 
a  deposition  be  not  properly  taken,  it 
is  not  made  admissible  by  the  death 
of  the  witness.  Johnson  v.  Clark,  1 
Tyler,  449.  In  Harper  v.  Cook,  1 
Carrington  &  Payne,  139,  it  was  held 
that  the  contents  of  a  lost  affidavit 
might  be  shown  by  secondary  evi- 
dence. The  necessity  of  retaking,  it 
was  not  suggested.  In  the  present 
case  the  witness  lived  in  another  state 
and  more  than  one  hundred  miles  from 
the  place  of  trial.  The  process  of  the 
court  could  not  reach  him  ;  for  all  ju- 
risdictional purposes  he  was  as  if  he 
were  dead.  It  is  well  settled  that,  if 
books  or  papers  necessary  as  evidence 
in  a  court  in  one  state  be  in  the  pos- 
session of  a  person  living  in  another 
state,  secondary  evidence,  without  fur- 
ther showing,  may  be  given  to  prove 
the  contents  of  such  pai)ers,  and  no- 
tice to  produce  them  is  unnecessary. 
Shepard  v.  Giddings,  "22  Connecticut, 
282  ;  Brown  v.  Wood,  4  Bennett  (19 
Missouri),  475  ;  Teall  v.  Van  Wyck, 
10  Barbour,  376.  See,  also,  Boone 
V.  Dykes,  3  Munroe,  532 ;  Eaton  f. 
Campbell,  7  Pick.  10  ;  Bailey  v.  John- 
son, 9  Co  wen,  115  ;  INIaiiri  i\  Heirer- 
nan,  13  Johnson,  58.  Here  there  was 
nothing  to  prevent  the  operation  of 
the  general  rule  as  to  proof  touching 
writings  lost  or  destroyed.  The  depo- 
sition was  one  of  the  files  in  the  case. 
The  plaintiff  was  entitled  to  the  ben- 
efit of  the  contents  of  that  document. 

147 


§  139.] 


THE  LAW   OF  EVIDENCE. 


[book  I. 


proof  of  due  execution  of  the  will,  probate  will  be  granted  of  a 
draft  of  the  will  duly  proved.^  So  proof  has  been  received  to 
show  that  a  draft,  signed  by  a  testator,  and  indorsed  by  him, 
"  Intended  will,"  was  meant  by  him  as  a  real  will.^ 

§  139.  Probate  will  also  be  granted,  under  like  conditions, 
when  the  substance  of  a  lost  will  can  be  proved  by  reliable  wit- 
nesses.^ Thus,  in  an  English  case  of  great  interest,  decided  in 
1876,  it  was  held  that  declarations,  written  or  oral,  made  by  a 
testator,  both  before  and  after  the  execution  of  his  will,  are,  in 
the  event  of  its  loss,  admissible  as  secondary  evidence  of  its  con- 
tents. It  was  also  determined  that  when  the  contents  of  a  lost 
will  are  not  completely  proved,  probate  will  be  granted  to  the 
extent  to  which  they  are  proved.*  The  fact  that  a  will  was 
duly  executed  must  first  be  proved  beyond  reasonable  doubt. 
If  proved,  however,  to  have  existed,  its  substance  may  be  proved 
as  may  that  of  any  lost  document.  And  though  parol  evidence 
to  supply  the  place  of  a  lost  will  must  be  strong  and  positive,^ 
yet  when  strong  and  positive  it  may  be  received  so  as  to  author- 
ize probate.^     The  testimony  of  a  party  interested,  whose  cred- 


Having  been  lost  without  his  fault,  he 
was  not  bound  to  supply  its  place  by 
another  and  a  different  deposition, 
which  might  or  might  not  be  the  same 
in  effect  with  the  prior  one. 

"  There  was  no  error  in  admitting 
in  evidence  the  copy  to  which  this 
exception  relates."  Swayne,  J.,  Bur- 
ton I'.  Driggs,  21  Wall.  133. 

1  Lillie  V.  Lillie,  3  Hag.  184;  Brown 
V.  Brown,  8  E.  &  B.  876;  Paulton 
V.  Pdulton,  1  Sw.  &  Tr.  55;  ^.  C. 
4  Jur.  N.  S.  341;  Podmore  v.  What- 
ton,  3  Sw.  &  Tr.  449;  Hobberfield  v. 
Browning,  4  Ves.  200,  n.  ;  Finch  v. 
Finch,  L.  R.  1  Prob.  &  D.  372;  Jar- 
man  on  Wills,  114  ;  1  Redfield  on 
Wills,  168.  See  Kitchens  v.  Kitchens, 
39  Ga.  168. 

2  Bone  V.  Spear,  1  Phillimore,  345. 
See  Popple  v.  Cunison,  1  Add.  377. 

8  Wharram  v.  Wharram,  3   Sw.   & 
Tr.  301;  Moore  v.  Whitehouse,  34  L. 
J.  Pr.  &  Mat.  31;  Body,  in  re,  34  L. 
148 


J.  Pr.  &  Mat.  55;  Finch  v.  Finch,  L. 
R.  1  P.  &  D.  371;  Burls  v.  Burls,  L. 
R.  1  P.  &  D.  472. 

^  Sugden  v.  Lord  St.  Leonards,  L. 
R.,  P.  D.  (C.  A.)  154,  overruling 
Quick  V.  Quick,  3  Sw.  &  Tr.  442,  as  to 
declarations  made  after  the  execution 
of  the  will. 

^  Lucas  V.  Brooks,  23  La.  An.  117; 
Shepherd  v.  Brooks,  23'  La.  An. 
129. 

6  Clark?;.  Wright,  3  Pick.  87;  Davis 
V.  Sigourney,  8  Mete.  487  ;  Johnson's 
Will,  40  Conn.  587;  Dan  v.  Brown,  4 
Cow.  483;  Jackson  v.  Betts,  6  Cow. 
377  ;  S.  C.  9  Cow.  205;  Everitt  v.  Ev- 
eritt,  41  Barb.  385  ;  Howard  v.  Davis, 
2  Binn.  406 ;  Jones  v.  Murphy,  8  Watts 
&  S.  275  ;  Youndt  v.  Youndt,  3  Grant 
Cas.  140;  Steele  v.  Price,  5  B.  Mon. 
58;  Morris  v.  Swaney,  7  Heisk.  591; 
Jackson  v.  Jackson,  4  Mo.  210;  Dickey 
V.  Malechi,  6  Mo.  177. 


CHAP.  III.] 


LOST   DOCUMENTS. 


[§  140. 


ibility  is  beyond  suspicion,  may  be  sufl&cient  to  prove  the  sub- 
stance of  the  will.^  A  party,  however,  who  could  produce  a 
draft  of  such  will,  cannot  prove  it  by  parol.^ 

§  140.   To  authorize  meraoriter  proof  of  a  lost  document,  the 
witness  must  have  read  it,  or  heard  its   contents  from 
its  author,  and  be  able  to  speak  at  least  to  the  sub-   must  liave 
stance  of  such  contents..^     In  testifying  he  may  refresh    qfui^/Jed 
his  memory  by  abstracts  taken  by  himself.*     Such  evi-   ?^"''  "'"'5" 
dence,  also,   should  be  supported  strongly  by  circum- 
stances in  cases  where   the    probabilities  are  that   a  writing  of 
the  character  of  that  in  dispute  would  be  careful  1}^  preserved.^ 
The  degree  of  accuracy  with  which  a  witness  is  expected   to 
speak  in  this  relation  is  elsewhere  more  fully  discussed.^     The 
admissions  of    the   party  himself   are   sufficient   to   sustain  the 
accurac}'^  of  a  copy.'^     It  should  be  remembered  that  to  prove 
the  contents  of   a  lost  writing   it   is  not  necessary  to  call  the 
writer  ;  any  witness  familiar  with  the  contents  is  equally  admis- 
sible.^ 


^  Sugden  v.  Lord  St.  Leonards,  ut 
supra. 

2  111.  Land  Co.  v.  Bonner,  75  111. 
315. 

^  See  infra,  §  514;  Fisher  v.  Samu- 
da,  1  Camp.  193  ;  Clark  v.  Houghton, 
12  Gray,  38  ;  Co.xe  v.  England,  65 
Penn.  St.  212;  Rankin  v.  Crow,  19 
111.  62G  ;  Posten  v.  Rassette,  5  Cal. 
4G7. 

<  Burton  v.  Driggs,  20  Wall.  133  ; 
Ins.  Co.  V.  Weide,  9  Wall.  C77;  Sizer 
V.  Burt,  4  Denio,  42G;  MH3son v.  Beas- 
ley,  27  Miss.  106.     Infra,  §  516. 

s  Moore  v.  Livingston,  28  Barb.  543; 
Brown  v.  Austin,  41  Vt.  262;  Brad- 
bury i>.  D wight,  3  Mete.  Mass.  31  ; 
Whitney  v.  Sprague,  23  Pick.  198  ; 
Wylie  V.  Smitherman,  8  Ired.  (N.  C.) 
236;  Marshall  v.  Morris,  16  Ga.  368. 

«  Infra,  §§  514-15. 

'  Infra,  §  1091.  "It  is  certainly 
not  to  be  denied,  or  even  doubted,  that 
to  make  a  copy  of  a  lost  instrument  of 
writing  admissible,  the  evidence  of  the 
genuineness  of  the  original  from  which 


it  was  taken  must  be  of  the  most  posi- 
tive and  unequivocal  kind.  McRey- 
nolds  V.  McCord,  6  Watts,  288;  Sione 
I'.  Thomas,  2  Jones,  Penn.  209;  Porter 
V.  AVilson,  1  Harris,  641.  But  it  does 
not  follow  that  the  only  mode  of  estab- 
lishing such  genuineness  is  the  testi- 
mony of  a  witness  who  saw  the  hand- 
writing of  the  parties,  and  who  knew 
and  was  able  to  identify  it  as  such.  If 
the  party  sought  to  be  charged  should 
himself  hand  the  paper  as  genuine  to 
a  copyist,  that  certainly  would  be  such 
an  unequivocal  acknowledgment  of  its 
genuineness  as  to  dispense  with  any 
other  evidence.  The  circumstances 
in  evidence  on  the  trial  of  this  cas^e  as 
to  the  genuineness  of  the  paper,  a  copy 
of  which  was  offered  and  received,  ap- 
pear to  us  to  be  equal  to  such  an  ac- 
knowledgment." Sharswuod,  J.,  Krisc 
r.  Ncason,  66  Penn.  St.  2.')8. 

8  R.  V.  Hurley,  2  M.  &  Kob.  4  73; 
R.  t'.  Benson,  2  Camp.  508  ;  Bank 
Prosecutions,  R.  &  R.  3  78.  See  supra, 
§90. 

14'J 


§141.] 


THE   LAW   OK   EVIDENCE. 


[book  I. 


Court  must, 
be  satisfied 
that  orifji- 
iial  writing 
is  not  pro- 
ducible, 
and  would 
be  evi- 
dence if 
produced. 


§  141.  Rut  the  production  of  proof,  satisfactory  to 
the  court,  that  it  is  out  of  the  power  of  the  party  to  pro- 
duce the  document  alleged  to  be  lost,  and  of  its  prior 
existence  and  genuineness,  is  a  prerequisite  condition  of 
the  admission  of  secondary  evidence  of  its  contents. 
The  question  of  such  admissibility  is  for  the  court.^ 


^  R.  V.  Johnson,  7  East,  66;  Doe  v. 
Wliitcomb,  6  Ex.  R.  605;  Brewster  v. 
Sewell,  3  B.  &  A.  303;  Gully  v.  Bishop 
of  Exeter.  4  Bing.  298  ;  Pardoe  v. 
Price,  13  M.  &  W.  267;  Bouldin  v. 
Massie,  7  Wheat.  122  ;  Butler  v.  Ma- 
ples, 9  Wall.  766;  Batchelder  v.  Nut- 
ting, 16  N.  H.  261;  Morrill  v.  Foster, 
32  N.  H.  358  ;  Brighton  Bk.  v.  Phil- 
brick,  40  N.  H.  506 ;  Boynton  v.  Rees, 
8  Pick.  329;  Brackett  v.  Evans,  1  Gush. 
79;  Stratford  v.  Ames,  8  Allen,  577; 
Witter  V.  Latham,  12  Gonn.  392;  Gary 
V.  Gampbell,  10  Johns.  R.  363;  Cham- 
bers V.  Hunt,  22  N.  J.  L.  552  ;  Cau- 
man  v.  Congregation,  6  Binney,  59  ; 
Young  V.  Mackall,  3  Md.  Gh.  398  ; 
Marshall  v.  Haney,  9  Gill,  251 ;  Morri- 
son V.  Welty,  18  Md.  169;  Beall  v. 
Poole,  27  Md.  645;  Ben  i;.  Peete,  2 
Rand.  539;  Dawson  v.  Graves,  4  Gall, 
127 ;  Lungsford  v.  Smith,  12  Grat. 
554;  Redman  v.  Green,  3  Ired.  Eq. 
54;  Dumas  v.  Powell,  3  Dev.  (N,  C.) 
L.  466;  Reynolds  v.  Quattlebum,  2 
Rich.  (S.  C.)  140;  Holcombe  v.  State, 
28  Ga.  66;  Bigelow  v.  Young,  30  Ga. 
121;  Oliver  v.  Parsons,  30  Ga.  391; 
Hadley  r.  Bean,  53  Ga.  685;  Poulet 
V.  Johnson,  25  Ga.  403;  Cameron  v. 
Kersey,  41  Ga.  41;  Wiswall  v.  Kne- 
vals,  18  Ala.  65;  Hussey  v.  Roque- 
more,  27  Ala.  281 ;  Fralick  v.  Pres- 
ley, 29  Ala.  457  ;  Glassell  v.  Mason,  32 
Ala.  719;  Bogan  v.  McCutchen,  48 
Ala.  493;  Perkins  v.  Bard,  16  La.  An. 
443;  Marks  v.  Winter,  19  La.  An.  445; 
Doe  V.  McCaleb,  2  How.  (Miss.)  756  ; 
Benton  v.  Craig,  2  Mo.  198;  Hanson 
V.  Armstrong,  22  111.442;  Fisk  i;.  Kis- 
sane,  42  111.  87;  Nixon  r.  Cobleigh,  52 

150 


III.  387;  Sloo  V.  Roberts,  7  Ind.  128; 
Manson  v.  Blair,  15  Ind.  242;  Harlan 
I'.  Harlan,  17  Ind.  328;  Non-is  v.  Rus- 
sell, 5  Gal.  249;  Poorman  v.  Miller,  44 
Cal.  269;  Winona  v.  Huff,  11  Minn. 
119;  Sternburg  v.  Callahan,  14  Iowa, 
251;  Johnson  v.  Mathews,  5  Kans. 
118. 

"  It  is  elementary  doctrine  that  the 
contents  of  a  deed  of  conveyance  lost, 
destroyed,  or  suppressed,  may  be  es- 
tablished by  parol  evidence  in  an  ac- 
tion of  ejectment,  when  its  existence 
as  a  valid  instrument  has  first  been 
satisfactorily  proved.  McReynolds  v. 
McCord,  6  Wright,  288.  The  effect 
of  such  proof  is  of  equal  force  in  sus- 
taining the  title  of  the  grantee  as  if 
the  deed  itself  had  been  presented. 
This  is  so  ex  necessitate  rei,  otherwise 
titles  might  be  defeated  by  fraud  or 
accident,  without  fault  on  the  part  of 
the  vendee,  and  in  disregard  of  the 
consideration  for  the  conveyance.  A 
rule  like  this  would  be  so  obviously 
unjust  that  it  could  not  exist  in  any 
civilized  land.  A  near  equivalent  of 
such  a  rule  would  be  any  rule  which 
should  render  such  proof  impractica- 
ble by  technical  requirements,  or  to 
the  order  of  proof;  such,  for  instance, 
as  the  requirement  of  perfect  proof 
in  the  theory  of  a  first  step  taken 
before  a  second  should  be  attempted. 
All  competent  evidence  in  such  a  case 
should  be  received  when  ofiered, 
whether  in  logical  sequence  or  not, 
especially  if  offered  to  be  followed  by 
what  would  make  out  a  complete  case 
if  believed.  When  the  testimony  is 
in  it  is  the  duty  of  the  judge  to  inform 


CHAP.  III.] 


LOST   DOCUMENTS. 


[§ 


142. 


§  142.  Loss,  like  all  other  evidential  facts,  can  be  only  infer- 
entially  proved.     In  one  sense  no  instrument  can  be 
spoken  of  as  lost  that  is  not  destroyed,  or  irrevocably    inferen- 
out  of  the  power  of  the  party  desiring  to  produce   it.    pj^^'^^g^ 
A  check  or  promissory  note  may  be  carefully  put  away 
in  a  book,  and  the  place  of  deposit  forgotten.     Every  effort  may 
be  honestly  made  to  find  it ;  it  is  all   the   time  in  the  seeker's 
library,  in  the  very  place  where  he  put  it ;  yet  after  all  it  may 
be  hopelessly  lost.     It  is  not  necessary,  therefore,  to  prove  ex- 
haustively that  the  paper  exists  nowhere.     It  is  sufficient  if  the 
party  offering  parol  proof  show  such  diligence  as  is  usual  with 
good  business  men  under  the  circumstances.^     But  before  such 
evidence  will  be  admissible,  it  must  be  sliown  that  the  original  in- 
strument was  duly  executed,  and  was  otherwise  genuine.^    Where 
the  document  is  one  to  whose  validity  attesting  witnesses  are  es- 


the  juiy  wliat  the  law  requires  to  be 
extracted  from  the  body  of  it  in  order 
to  make  out  a  good  and  valid  case 
in  law,  and  what  effect  a  failure  to 
do  so  would  have.  A  party  must  be- 
gin with  his  proof  somewhere ;  and 
where,  is  less  important  a  great  deal 
than  its  completeness.  A  judge  will 
look  at  the  latter  with  great  care  as 
being  of  the  very  essence  of  the  con- 
test, and  at  the  former  as  a  desirable 
result  rather  than  an  essential  one." 
Thompson,  C.  J.,  Diehl  v.  Emig,  65 
Penn.  St.  32G. 

1  Moore  v.  Tillotson,  7  Pet.  99; 
Bouldin  v.  Massie,  7  Wheat.  122;  U. 
S.  V.  Sutter,  21  How.  170;  Wing  v. 
Abbott,  28  Me.  3G7  ;  Simpson  v.  Nor- 
ton, 45  Me.  281  ;  Pickard  v.  B;iiley, 
2G  N.  H.  152;  Brown  v.  Austin,  41 
Vt.  262;  Taunton  BIc.  v.  Richardson, 
7  Pick.  436;  Hatch  v.  Carpenter,  9 
Gray,  271  ;  Kelsey  v.  Hanmer,  18 
Conn.  311;  Jackson  v.  Neely,  10 
Johns.  R.  374  ;  Voorhees  v.  Dorr,  51 
Barb.  580;  Leland  v.  Cameron,  31 
N.  Y.  115;  Kingswood  v.  Bethlehem, 

13  N.  J.  L.  221  ;  Clark  v.   Horiibeck, 

14  N.  J.  L.  430;  Paul  v.  Durborow, 


13  Serg.  &  R.  392;  Parks  v.  Dunkle, 
3  Watts  &  S.  291;  Dreisbach  v.  Ber- 
ger,  6  Watts  &  S.  564 ;  Flinn  i'. 
McGonigle,  9  Watts  &  S.  75;  Spal- 
ding V.  Bank,  9  Penn.  St.  28 ;  Hemp- 
hill f.  McClimans,  24  Penn.  St.  367; 
Graff  V.  R.  R.  31  Penn.  St.  489; 
Brown  v.  Davy,  78  Penn.  St,  179; 
Coxe  V.  Deringer,  78  Penn  St.  271  ; 
Raab  v.  Ulrich,  2  Weekly  Notes  of 
Cases,  53;  Prettyman  v.  Walston,  34 
III.  175;  Carr  v.  Miner,  42  111.  179; 
McMillan  v.  Bothold,  35  111.  250; 
Carter  v.  Edwards,  16  Ind.  238  ;  Ellis 
V.  Smith,  10  Ga.  253;  Harper  v. 
Scott,  12  Ga.  125;  Roe  v.  Doe,  32 
Ga.  39;  Hill  v.  Fitzpatrick,  6  Ala. 
314;  Shields  v.  Byrd,  15  Ala.  818; 
Johnson  v.  Powell,  30  Ala.  113  ;  Sex- 
ton V.  McGill,  2  La.  An.  190;  ALcrritt 
r.  Wright,  19  La.  An.  91;  Williams 
V.  Heath,  22  Iowa,  519. 

2  Goudicr  V.  L;ike,  I  .\tk.  446;  R. 
V.  Culpepper,  Skin.  673;  Doc  v. 
Whitefoot,  8  C.  &  P.  270;  Jackson 
V.  Frier,  16  Johns.  R.  196  ;  Hamp- 
shire V.  Floyd,  38  Tex.  103,  and  cases 
above  cited. 

151 


§  146.]  THE  LAW   OF  EVIDENCE.  [BOOK  I. 

sential,  the  attesting  witness  must,  if  known,  be  called,  or  in  the 
event  of  his  death,  his  handwriting  must  be  proved,  precisely  in 
the  same  manner  as  if  the  deed  itself  had  been  produced  ;  though 
if  it  cannot  be  discovered  who  the  attesting  witness  was,  this 
strictness  of  proof  will,  from  necessity,  be  waived. ^ 
Or  by  ad-  g  143_  Xhe  admission  of  the  opposing  party,  or  of 
opponent,     hls  attorney,  is  sufficient  evidence  of  loss.^ 

§  144.  If  a  document  has  been  placed  in  the  hands  of  a 
Cu  dians  custodian,  he  must  be  required  to  make  due  search,  and 
to  be  in-       the  fruitlcssness  of  such  search  must  be  shown,  before 

qun-ed  of.  i       i        •      q 

secondary  evidence  can  be  let  in.^  Where  such  person 
is  dead,  inquiry  must  be  made  of  his  legal  representatives,  if  the 
matter  concerns  his  personalty,  or  of  his  heirs,  if  it  concerns  his 
realty.^ 

§  145.  When  there  is  doubt  as  to  the  proper  custodian  of  an 
instrument,  it  may  be  necessary  to  search  all  probable  places  of 
deposit.  Thus,  in  reference  to  a  lost  but  expired  indenture  of 
apprenticeship,  as  the  apprentice  appears  to  have  the  greatest 
interest  in  its  preservation,^  stricter  inquiry  should  be  made  of 
him  than  of  the  master,  though,  in  the  absence  of  positive  proof 
respecting  the  possession,  caution  would  suggest  what  the  law 
might  not  require,^  a  search  among  the  papers  of  both.  So, 
upon  the  loss  of  a  marriage  settlement,  which,  after  providing  a 
portion  for  younger  children,  and  vesting  a  legal  term  in  trustees 
to  secure  it,  reserved  an  ultimate  remainder  to  the  settlor's  heir, 
it  was  held,  that  a  search  among  the  papers  of  the  surviving 
younger  child  was  insufficient  to  let  in  secondary  evidence  of  its 
contents,  and  that  the  papers  of  the  surviving  trustee,  and  of  the 
heir,  should  also  have  been  examined.^ 

§  146.  A  lost  expired  lease  may  be  looked  for  in  the  custody 
of  either  lessor  or  lessee  ;  but,  after  a  considerable  interval,  it 
will  frequently  be  found  in  the  landlord's  possession,  as  constitut- 

1  Ibid.;  Taylor's  Ev.  §  434.     Infra,         *  Taylor's  Ev.  §  404. 

§  723.  5  See  Hall  v.  Ball,  3  M.  &  Gr.  247. 

2  R.  V.  Haworth,  4  C.  &  P.  254  ;  6  R.  v.  Hinckley,  32  L,  J.,  M.  C. 
Shortz    V.   Unangst,   3   W.   &   S.  45;     158;  3  B.  &  S.  885,  S.  C. 

Cooper  V.  Maddan,  6  Ala.  431.    See  ^  Cruise  v.    Clancy,   6  Ir.    Eq.  R. 

infra,  §  1091.  552,  556,  per  Sugden,  Ch. ;  Richards 

3  Hart  V.   Hart,   1  Hare,   1 ;  R.  v.  v.  Lewis,  11  Com.  B.  1035. 
Piddlehinton,  3  B.  &  Ad.  460. 

152 


CHAP.  III.] 


LOST   DOCUMENTS. 


[§  14T. 


ing  one  of  the  muniments  of  his  title.^  It  has,  however,  never 
been  expressly  decided  that  a  search  among  the  muniments  of 
the  lessor  alone  would  not  let  in  secondary  evidence  ;  and  Bay- 
ley,  J.,  on  one  occasion,  seems  to  have  thought  that  an  examina- 
tion of  the  lessee's  papers  would  not  be  absolutely  necessary .^ 

§  147.  Certain  rules,  however,  have    been  settled  as  guiding 
the  judgment  of  the  courts  in  the  exercise  of  this  im-   ggarchin 
portant  function.     Thus  it  is  not  enough  for  a  party  of-   proper 

.  ,  .  ,  .         1  i         ./  places 

fermg  secondary  evidence  simply  to  swear  that  he  has  must  be 
made  general  search  for  the  missing  paper.  To  satisfy  "^"^"^ 
the  court  which  has  the  determination  of  the  question  of  admis- 
sibility, search  in  probable  places  of  deposit  must  be  proved,  and 
the  parties  last  in  possession  of  the  paper  must,  if  possible,  be 
examined.^  The  search  must  be  by  persons  having  access  to 
probable  places  of  deposit,^  and  must  be  recent.^  If  there  be  no 
grounds  to  impute  bad  faith,  it  is  enough  to  show  that  the  paper  is 
not  to  be  found  in  the  place  where  it  was  last  deposited,  or  by  the 


1  Hall  V.  Ball,  3  M.  &  Gr.  242,  253; 
3  Scott,  N.  R.  577,  5.  C. ;  Plaxton  v. 
Dare,  10  B.  &  C.  17 ;  5  M.  &  R.  1,  S. 
C. ;  Elworthy  v.  Sandfoi-d,  34  L.  J. 
Ex.  42  ;  3  H.  &  C.  330,  S.  C. ;  R.  v. 
North  Bt'dburn,  Cald.  452,  per  BuUer, 
J.  ;  Doe  V.  Keeling,  11  Q.  B.  884. 

2  Brewster  v.  Sewell,  3  B.  &  A.  301, 
302;  Hall  v.  Ball,  3  M.  &  Gr.  247,  per 
Erskine,  J. 

8  Gathercole  v.  Miall,  15  M.  &  W. 
319  ;  R.  V.  Saffron  Hill,  1  E.  &  B. 
93  ;  Pardoe  v.  Price,  13  M.  &  W.  2G7; 
Simpson  v.  Dall,  3  Wall.  460 ;  Mason 
V.  Tallman,  34  Me.  472  ;  Bartlett  v. 
Sawyer,  46  Me.  317  ;  Thrall  v.  Tod<l, 
34  Vt.  97;  Goignard  v.  Smith,  8  Pick. 
272  ;  Large  v.  Van  Doren,  14  N.  J.  Eij. 
208  ;  Jackson  v.  Frier,  16  Johns.  R. 
192  ;  Dreisbach  v.  Berger,  6  W.  &  S. 
564 ;  Krise  v.  Neason,  66  Penn.  St. 
253  ;  Clement  i'.  Ruckle,  9  Gill,  326  ; 
Ringgold  V.  Galloway,  3  Har.  &  J. 
451;  Basford  r.  Mills,  6  Md.  385; 
Roberts  v.  Haskell,  20  111.  59  ;  Booth 
V.  Cook,  20  111.  129  ;  Stow  v.  People, 
25  111.    81  ;  Holbrook  v.  Trustees,  28 


111.  187;  Chicago  R.  R.  i'.  Ingersoll, 
65  III.  399;  Wing  v.  Sherrer,  77  111, 
200;  Board  of  Education  v.  Moore,  17 
Minn.  412;  Adams  v.  Fitzgerald,  14 
Ga.  36;  Davenport  v.  Harris,  27  Ga. 
68  ;  Preslar  i'.  Stall  worth,  3  7  Ala.  402; 
Green  v.  State,  41  Ala.  419  ;  McGuire 
V.  Bank,  42  Ala.  589  ;  Chaplain  v. 
Briscoe,  13  Miss.  198;  Barton  ('.Mur- 
rain, 27  Mo.  235;  Boyccu.  Mooney,  40 
Mo.  104;  Christy  r.  Kavanagh,  45  Mo. 
375  ;  Anderson  v.  Mayberry,  2  Ileisk. 
653;  Rash  v.  Whitney,  4  Mich.  495. 

*  Phillips  V.  Purington,  15  Ale.  425; 
Hammond  v.  Luddcn,  4  7  Me.  44  7; 
Dennis  v.  Brewster,  7  (iray,  351  ; 
Gaither  v.  Martin,  3  Md.  1  IG;  Mwk  v. 
Spencer,  8  Ind.  118;  Rankin  v.  Crow, 
19  111.  626;  Sturgis  v.  Hart,  45  III. 
103;  Horseman  v.  Todhunter,  12 
Iowa,  230;  Brown  r.  Tucker,  4  7  Ga. 
485;  Lawrence  t>.  Burris,  13  La.  An. 
611  ;  CauKield  v.  Sanders,  17  Cal. 
569;  King  v.  Randlett,  33  Cal.  318  ; 
Taylor  f.  Clark,  49  Cal.  671. 

s"  Porter    v.    Wilson,    13    IVnn.    St. 
641.     See  Fitz  v.  Rabbits,  infra. 
153 


§  148.] 


THE    LAW    OF   EVIDENCE. 


[book  I. 


person  in  wliose  custody  it  last  was,  and  that  all  probable  places 

of  deposit  have  been  searched  in  vain.^ 

§  148.  A  document  of  importance  may  readily  be  hid  away, 
from  excessive  care,  in  a  place  of  peculiar  secrecy,  yet 
that  place  may  be  forgotten.^  A  paper  of  little  impor- 
tance is  likely  to  be  swept  away  and  destroyed.     Of  the 

oTdocu-"^^    latter,  therefore,  the    probabilities   of    destruction    are 
much  greater  than  of  the  former  ;  and,  in  order  to  let  in 


Degree  of 
search  re- 
quired to 
be  propor- 
tionate to 


ment. 


1  R. 
Hart  I 


V.  Saffron  Hill,  1  E.  &  B.  93; 
Hart,  1  Hare,  9  ;  McGahey  v. 
Alston,  2  M.  &  W.  214  ;  Tyler  v. 
Dyer,  13  Me.  41;  Moore  v.  Beattie, 
33  Vt.  219;  Wilter  v.  Latham,  12 
Conn.  392;  Waller  v.  School  Dist.  22 
Conn.  326;  Francis  v.  Ins.  Co.  6  Cow. 
404  ;  Kent  v.  Harcourt,  33  Barb.  491; 
Indianap.  E.  R.  v.  Jewett,  16  Ind. 
273;  Conkey  v.  Post,  7  Wise.  131; 
Edwards  v.  Edwards,  11  Rich.  (S.  C.) 
537;  Cooper  v.  Maddan,  6  Ala.  431; 
Juzan  V.  Toulmin,  9  Ala.  662;  Dunn 
V.  Choate,  4  Te.x.  14;  Dunning  v.  Ran- 
kin, 19  Cal.  640. 

When  a  document's  proper  place  is 
in  a  public  office,  or  some  other  special 
place  of  deposit,  then  it  is  generally 
enough  to  prove  a  search  in  such  office 
or  place  of  deposit.  Thus  secondary 
evidence  of  the  contents  of  a  warrant, 
issued  by  the  defendant,  has  been  re- 
ceived on  proof  by  the  high  constable, 
who  levied  under  it,  that  he  had  de- 
posited it  in  his  office,  and  had  sought 
for  it  there  in  vain  ;  though  he  added 
that  the  town  clerk  had  access  to  the 
office,  and  it  was  objected  that  the  de- 
fendant should  have  been  served  with 
a  notice  to  produce  the  warrant,  and 
the  town  clerk  with  a  subpoena  duces 
tecum.  Fernley  v.  Worthington,  1  M. 
&  Gr.  491. 

So,  upon  the  loss  of  a  cancelled 
check,  where  it  was  the  duty  of  a  pay- 
ing clerk  of  a  parish  to  deposit  the 
cancelled  check  in  a  room  of  the  work- 
house, an  application  to  the  successor 
of  this  clerk  for  an  inspection  of  the 

154 


checks  in  the  room,  and  an  ineffectual 
examination  of  several  bundles  which 
were  handed  to  the  party  searching 
by  the  successor,  was  deemed  a  suffi- 
cient search  to  let  in  secondary  evi- 
dence, though  no  notice  to  produce 
had  been  served  on  the  first  clerk,  he 
being  the  defendant  in  the  cause,  and 
though  the  person  who  succeeded  him 
in  the  office  was  not  called.  McGahey 
V.  Alston,  2  M.  &  W.  206. 

Again,  upon  the  loss  of  a  parish 
indenture  of  apprenticeship,  where  it 
was  shown  that  the  indenture  had 
been  given  to  a  person,  since  dead,  to 
take  to  the  overseers,  and  a  fruitless 
search  was  made  for  it  in  the  parish 
chest,  which  was  the  proper  reposi- 
tory for  such  instruments,  secondary 
evidence  was  admitted,  though  none 
of  the  overseers  were  called,  and  no 
inquiry  was  made  of  the  personal  rep- 
resentative of  the  party,  who  ought 
to  have  delivered  it  to  the  parish  offi- 
cers. R.  V.  Stourbridge,  8  B.  &  C. 
96. 

Immed lateness  of  search  is  not  es- 
sential when  such  search  was  exhaust- 
ively made  upon  the  discovery  of  the 
loss.  Where  it  was  made  amongst  the 
proper  papers  three  years  before  the 
trial,  this  was  held  sufficient,  though 
it  was  said  that  it  would  have  been 
better  had  the  papers  been  again  ex- 
amined. Fitz  I'.  Rabbits,  2  M.  &  Rob. 
607. 

2  Am.  Life  Ins.  Co.  v.  Rosenagle, 
7  7  Penn.  St.  507. 


CHAP.  III.]  LOST   DOCUMENTS.  [§  148. 

secondary  evidence,  much  more  vigilant  search  is  required  for  im- 
portant than  for  unimportant  papers.  In  an  English  case,  where 
the  defendant  was  sued  for  an  alleged  libel  in  a  paper  called 
The  Non-conformist,^  a  witness  was  called,  in  order  to  prove 
the  circulation  of  the  libel,  who  said  he  was  president  of  a  lit- 
erary institution,  which  consisted  of  eighty  members ;  that  a 
number  of  The  Non-conformist  was  brought  to  the  institution, 
he  did  not  know  by  whom,  and  left  there  gratuitously  ;  that, 
about  a  fortnight  afterwards  it  was  taken  (as  he  supposed)  out 
of  the  subscribers'  room  without  his  authority,  and  was  never 
returned  ;  that  he  had  searched  the  room  for  it,  but  had  not 
found  it,  and  never  knew  who  had  it ;  and  that  he  believed  it 
had  been  lost  or  destroyed.  The  judge  trying  the  case  ruled 
that  after  such  proof  secondary  evidence  of  the 'contents  of  the 
paper  was  admissible.  The  court  in  banc,  on  a  motion  for  a 
new  trial,  held  the  ruling  to  be  right,  Alderson,  B.,  delivering 
the  judgment,  saying,  "  The  question  whether  there  has  been  a 
loss,  and  whether  there  has  been  sufficient  search,  must  depend 
very  much  on  the  nature  of  the  instrument  searched  for  ;  and  I 
put  the  case,  in  the  course  of  the  argument,  of  the  back  of  a  let- 
ter. It  is  quite  clear  a  very  slender  search  would  be  sufficient  to 
show  that  a  document  of  that  description  had  been  lost.  If  we 
were  speaking  of  an  envelope  in  which  a  letter  had  been  received, 
and  a  person  said,  '  I  have  searched  for  it  among  my  papers,  I 
cannot  find  it,'  surely  that  would  be  sufficient.  So,  with  respect 
to  an  old  newspaper  which  has  been  at  a  public  coffee-room  ;  if 
the  party  who  kept  the  public  coffee-room  had  searched  for  it 
there,  where  it  ought  to  be  if  in  existence,  and  where  naturally 
he  would  find  it,  and  says  he  supposes  it  has  been  taken  away 
by  some  one,  that  seems  to  me  to  be  amply  sufficient.  If  ho 
had  said,  '  I  know  it  was  taken  away  by  A.  B.,'  then  I  should 
have  said,  you  ought  to  go  to  A.  B.,  and  see  if  A.  B.  has  not 
got  that  which  it  is  proved  he  took  away  ;  but  if  you  hav(>  no 
proof  that  it  was  taken  away  by  any  individual  at  all,  it  scmmus 
to  me  to  be  a  very  unreasonable  thing  to  require  that  you  should 
go  to  all  the  members  of  the  club,  for  the  purpose  of  asking  one 
more  than  another  whether  he  has  taken  it  away,  or  kept  it.    I  do 

1  Gathcrcole  v.  Miall,  15  IM.  &  W.  319.     See   R.  v.  East  Fairley,  G  D.  & 
II.  lo3. 

155 


§  149.] 


THE   LAW   OF  EVIDENCE, 


[book  I. 


not  know  where  it  would  stop ;  when  you  once  go  to  each  of  the 
members,  then  you  must  ask  each  of  the  servants,  or  wives,  or 
children  of  the  members  ;  and  where  will  you  stop  ?  As  it  seems 
to  me,  the  proper  limit  is,  where  a  reasonable  person  would  be 
satisfied  that  the}^  had  bond  fide  endeavored  to  produce  the  docu- 
ment itself ;  and  therefore  I  think  it  was  reasonable  to  receive 
parol  evidence  of  the  contents  of  this  newspaper."  ^ 

§  149.  At  common  law,  a  peculiarly  stringent  rule  was  adopted 
Peculiar  as  to  negotiable  paper.  Thus  it  w^s  held  that  no  ac- 
requMwUs  ^^^^"^  ^^^  ^^^^  could  be  Sustained  on  a  lost  bill  of  exchange, 
ne^rtLwe  pi'o^issory  note,  or  check,  or  on  the  respective  consid- 
paper.  erations,  provided  the  instrument  had  been  originally 

drawn  payable  to  order,  or  bearer,  and  provided  the  fact  of  the 
loss  had  been  specially  pleaded.-     The  remedy  was  held  in  Eng- 


1  That  the  degree  of  search  is  to 
be  proportioned  to  the  importance  of 
the  instrument,  see  R.  v.  Gordon, 
Pearce  &  D.  586  ;  Brewster  v.  Sewell, 
3  B,  &  A.  303;  Pardee  v.  Price,  13 
M.  &  AV.  267;  Freeman  v.  Arkell,  2 
B.  &  C.  494.  See  Bligh  v.  Wellesley, 
2  C.  &  P.  400.  As  to  who  is  the 
proper  custodian,  see  infra,  §  194. 

"  The  stringency  of  the  rule  re- 
quiring search  for  documents  and 
proof  of  their  loss,  in  order  to  make 
parol  evidence  of  their  contents  ad- 
missible, is  proportioned  always  to  the 
character  and  value  of  the  documents 
themselves.  These  letters  were  be- 
tween relatives,  and  do  not  appear  to 
have  had  any  such  obvious  importance 
as  to  require  care  for  their  preserva- 
tion. Slight  proof  of  loss,  therefore, 
was  sufficient.  This  principle  has  uni- 
formly been  applied  where  documents, 
which  from  their  very  nature  would 
have  only  transitory  interest,  have 
been  in  question.  In  The  United 
States  V.  Doebler,  1  Bald.  519,  on  the 
trial  of  an  indictment  for  forging  and 
delivering  bank  notes,  after  proof  of 
the  fact  of  forging  a  large  quantity 
and  the  delivery  of  one  note,  it  was 
held  that  parol  evidence  of  the  con- 

156 


tents  of  a  letter  from  the  defendant  to 
an  accomplice  on  the  subjects  of  coun- 
terfeit notes,  for  which  the  accomplice 
could  not  account  and  had  not 
searched,  but  believed  to  be  lost,  was 
admitted.  The  principle  extends  to 
documents  of  more  grave  significance, 
if  it  appears,  when  the  witness  is  ex- 
amined, that  no  rational  motive  for 
keeping  them  existed.  A  deposition 
will  not  be  rejected  because  the  wit- 
ness speaks  of  papers  not  produced, 
if  it  appears  that  the  papers  are  such 
as  would  not  probably  be  preserved 
for  so  great  a  length  of  time  as  had 
elapsed  when  the  testimony  was  taken, 
or  are  not  in  the  possession  or  power 
of  the  witness  or  the  party  offering  the 
deposition.  Tilghman  v.  Fisher,  9 
Watts,  441.  The  principle  is  espe- 
cially applicable  to  the  contents  of 
family  letters  received  by  a  witness 
in  a  foreign  country.  The  evidence 
should  have  been  admitted."  Amei'i- 
can  Life  Ins.  Co.  v.  Rosenagle,  77 
Penn.  St.  514,  Woodward,  J. 

2  Ramuz  v.  Crowe,  1  Ex.  R.  167; 
Clay  V.  Crowe,  8  Ex.  R.  295 ;  Crowe 
V.  Clay,  9  Ex.  R.  604,  5.  C.  in  Ex. 
Ch.  ;  Hansard  v.  Robinson,  7  B.  &  C. 
90  ;  9  D.  &  R.  860,  S.  C;  Pierson  v. 


CHAP.  III.] 


LOST   DOCUMENTS. 


[§  150. 


land  to  be  at  equity.  In  this  country  less  mischief  arose  from  the 
harshness  of  this  rule,  from  the  fact  that  our  courts  administered 
equity  in  this  respect  under  common  law  forms.^ 

§  150.  If  the  document  was  last  seen  in  the  possession  of  a 
third  party,  he  must,  as  will  hereafter  be  seen,  be  sum-   Third  per- 
moned  by  a  subpoena   duces  tecum  to  produce  it,  so  that   ^vi"o4" 
his  testimony  concerning  it  can  be  taken  in  the  only   jj^"''^ '» 

,  ,  ,  .  aociiinent, 

waj^  that  such  testimony  is  receivable;  his  declaration    must  be 

11  ."  ..  1     .  .       1  ,       subpoenaed 

concerning  loss  by  strict  practice  not  being  receivable  to  produce. 
in  his   lifetime,  and   only  cautiously  after  his   death. ^     But   as 


Hutchinson,  2  Camp.  211  ;  6  Esp.  126, 
S.  C. ;  Mayor  v.  Johnson,  3  Camp. 
324  ;  Davis  v.  Dodd,  4  Taunt.  602; 
Champion  v.  Terry,  3  B.  &  B.  295  ; 
7  Moore,  130,  S.  C;  Bevan  v.  Hill, 
2  Camp.  381  ;  Woodford  v.  Whiteley, 
M.  &  M.  517.  See  Alexander  v. 
Strong,  9  M.  &  W.  733  ;  Lubbock 
V.  Tribe,  3  M.  &  W.  607;  Blaokie  v. 
Bidding,  6  Com.  B.  196  ;  Charnley 
V.  Grundy,  14  Com.  B.  608  ;  Taylor, 
§  408. 

^  See,  as  to  the  equitable  doctrine, 
Walmsley  v.  Child,  1  Ves.  Sen.  341 ; 
Toulmin  v.  Price,  5  Ves.  238;  Ex 
parte  Greenway,  6  Ves.  812;  Macart- 
ney V.  Graham,  2  Sim.  285  ;  Davies  v. 
Dodd,  1  Wils.  Ex.  110  ;  Mossop  v. 
Eadon,  16  Ves.  430. 

In  England  the  rule  has  been  ma- 
terially modified  by  the  Common  Law 
Procedure  Act  of  1854  (17  &  18  Vict, 
c.  125.  The  L-ish  Act,  19  &  20  Vict, 
c.  102,  contains  a  similar  provision  in 
§  90),  which  in  §  87  enacts,  that  "  In 
case  of  any  action  founded  upon  a  bill 
of  exchange  or  other  negotiable  in- 
strument,"—  which  last  words  will  in- 
clude a  bank  note;  McDonnell  v.  Mur- 
ray, 9  Ir.  Law  R.  N.  S.  495, —  "it 
shall  be  lawful  for  a  court  or  a  judge 
to  order  that  the  loss  of  such  instru- 
ment shall  not  be  set  up,  provided  an 
indemnity  is  given,  to  the  satisfaction 
of"  the  court  or  judge,  or  a  master, 
against  the  claims  of  any  other  per- 


son upon  such  negotiable  instrument." 
See  Aranguren  v.  Scholfield,  1  H.  & 
N.  494  ;  King  v.  Zimmerman,  40  L. 
J.  C.  P.  278.  If  the  payee  of  a  lost 
note  can  show  that  the  instrument  was 
never  negotiable,  as  having  been  orig- 
inally made  payable  to  himself  alone, 
he  cannot,  as  it  would  seem,  be  called 
upon  to  give  an  indemnity  under  this 
clause,  but  the  action  at  law  will  be 
sustainable,  either  on  the  instrument 
itself,  or  on  the  consideration ;  because, 
in  such  case,  the  defendant  cannot  be 
rendered  liable  to  pay  the  amount  a 
second  time.  Wain  r.  Bailey,  10  A. 
&  E.  616;  recognized  in  Ramuz  v. 
Crowe,  1  Ex.  R.  173;  Clay  v.  Crowe, 
8  Ex.  R.  298.  As  to  what  is  the  effect 
of  tlic  bill  being  destroyed,  see  Wright 
V.  Ld.  Maidstone,  1  Kay  &  J.  701, 
per  Wood,  V.  C.  See,  too,  Conflans 
Quarry  Co.  v.  Parker,  3  Law  Rep.  C. 
P.  1  ;  37  L.  J.  C.  P.  51,  6\  C. ;  wliere 
circular  notes  having  been  lost,  the 
party  losing  them  was  held  not  enti- 
tled to  sue  the  bankers  for  money  had 
and  received.  Taylor's  Ev.  §408,  from 
which  the  above  is  reduced. 

2  Walker  v.  Beauchamp,  6  C.  &  P. 
552;  R.  V.  Denio,  7  B.  &  C.  620;  R. 
V.  Castleton,  6  T.  R.  620 ;  R.  v.  Saf- 
fron Hill,  1  E.  &  B.  93.  Sec  R.  v. 
Morton,  4  M.  &  S.  48  ;  R.  v.  Fording- 
bridge.  El.,  Bl.  &  El.  6  78:  Rusk  v.  Sow- 
erwine,  3  Har.  &  J.  97.  Infra,  §§  37G- 
378. 

157 


§  151.] 


THE   LAW    OF   EVIDENCE. 


[book  I. 


such  testimony  is  addressed  to  the  court,  and  as  in  reference  to 
such  testimony  the  rule  between  direct  and  hearsay  evidence  is  not 
necessarily  preserved,  such  declarations  of  persons  who  are  likely 
to  know  about  the  document,  or  to  have  had  it  in  their  custody, 
have  been  received  to  prove  loss.^  It  should  be  remembered 
that  if  the  witness  refuses  to  produce,  and  has  no  lawful  excuse 
for  so  doing,  his  omission  or  refusal  does  not  entitle  the  party 
serving  him  with  the  subpoena  to  give  secondary  evidence  of  the 
contents  of  the  document.^  It  is  otherwise,  however,  when  the 
person  who  refuses  to  produce  the  document  is  not  by  law  coui- 
pellable  to  produce  it.^ 

§  151.  A  party  himself  (independently  of  statutes  enabling 
Part}-  may  him  to  testify  in  his  own  cause)  is  competent  by  affi- 
Ev°affida-^  davit  to  make  proof  of  loss  and  of  due  search  ;  and  his 
'^'*"  testimony  to  this  effect,  if  he  be  the  person  in  whose 

custody  the  paper  was,  is  sufficient  to  let  in  secondary  proof.'* 


1  R.  V.  Kenilwortli,  7  Q.  B.  652  ; 
R.  V.  Braintree,  1  E.  &  E.  51  ;  City 
of  Bristol  V.  Wait,  6  C.  &  P.  591. 

2  Jesus  Coll.  V.  Gibbs,  1  Y.  &  C.  Ex. 
R.  156;  R.  V.  Llanfaetbly,  2  E.  &  B. 
940. 

8  Doe  V.  Clifford,  2  C.  &  Kir.  448  ; 
Newton  v.  Chaplin,  10  C.  B.  356.  See 
Jesus  Coll.  V.  Gibbs,  1  Y.  &  C.  Ex.  R. 
156.     Infra,  §  585. 

"If  a  solicitor"  (says  Mr.  Taylor, 
Ev.  §  427)  "  refuses  to  produce  a  deed 
as  claiming  a  lien  upon  it,  secondary 
evidence  of  its  contents  cannot  be  re- 
ceived, provided  the  party  tendering 
such  evidence  be  the  person  liable  to 
pay  the  solicitor's  charges.  Att.  Gen. 
V.  Ashe,  10  Ir.  Eq.  R.  N.  S.  309.  So, 
also,  if  an  attorney,  who  is  not  acting 
under  special  instructions  from  his  cli- 
ent, declines  to  produce  an  instrument 
on  the  ground  of  privilege,  it  may  be 
very  questionable  whether  the  client 
must  not  be  subpoenaed,  in  order  to 
ascertain  whether  he  also  relies  on  his 
right  to  withhold  the  deed  ;  Doe  v. 
Ross,  7  M.  &  W.  122;  Newton  v. 
Chaplin,  10  Com.  B.  356  ;  In  re  Cam- 

158 


eron's  Coalbrook,  &c.  Rail.  Co.  25 
Beav.  1 ;  and  this  course  will  assur- 
edly be  prudent,  inasmuch  as  the  priv- 
ilege is,  in  strictness,  not  that  of  the 
attorney,  but  that  of  the  client.  If, 
indeed,  the  attorney  can  undertake  to 
swear  that  his  client  has  instructed 
him  not  to  produce  the  instrument,  it 
will  not  be  necessary  to  subpoena  the 
client ;  for  in  such  a  case  the  court 
would  very  properly  assume  that  the 
client,  if  called,  would  continue  to  be 
of  the  same  mind."  Phelps  v.  Prew, 
3  E.  &  B.  430. 

*  Patterson  v.  "Winn,  5  Pet.  233  ; 
Allen  V.  Blunt,  2  Woodd.  &  M.  121  ; 
Woods  V.  Gassett,  11  N.  H.  442;  Ste- 
vens V.  Reed,  37  N.  H.  49  ;  Bachelder 
V.  Nutting,  16  N.  H.  261  ;  Adams  i'. 
Leland,  7  Pick.  62 ;  Hathaway  v. 
Spooner,  9  Pick.  23  ;  Brighani  v.  Co- 
burn,  10  Gray,  329;  Williston  v.  Wil- 
liston,  41  Barb.  G35  ;  Vedder  v.  Wil- 
kins,  5  Denio,  64  ;  Ins.  Co.  v.  Wood- 
ruff, 26  N.  J.  L.  541 ;  Steel  v.  Wil- 
liams, 18  Ind.  161  ;  Wade  v.  Wade, 
12  111.  89;  Fisk  v.  Kissane,  42  111. 
87;    Jones   v.  Morehead,  2  B.   Mon. 


CHAP.  III.] 


LOST  DOCUMENTS. 


[§  152. 


His  witbliolding  such  an  affidavit  affords  a  presumption  against 
liim,  which,  however,  is  rebutted  by  proof  that  the  paper  never 
was  in  his  care.^  But  for  proof  of  the  prior  existence  and  gen- 
uineness of  such  a  paper,  something  more  than  the  party's  affi- 
davit is  necessary.  Such  existence  and  genuineness  must  be 
substantially  proved. ^  It  is  immaterial,  however,  so  far  as  con- 
cerns the  order  of  proof,  whether  the  proof  of  the  existence  and 
execution  of  the  paper,  or  its  loss,  be  received  first,  provided 
both  are  satisfactorily  shown .^ 


V.   SO  WHEN  DOCUMENT  IS   IN  HANDS   OF  OPPOSITE  PARTY. 

§  152.  When  it  is  desired  to  give  secondary  evidence  of  a  doc- 
ument in  the  possession  of  an  opposing  party,  it  is  neces-    Notice  to 
sary,  by  the  common  law  practice,  to  give  such  party 
notice  to  produce  the  paper  a  suitable  period   before 
the  trial.*     Thus  an  extract  from  a  lost  letter  cannot 


produce 
necessary 
wlifn  (locu- 
nient  is  in 
the  hands 
,       .    ,  ,,.  ,  .  of  opposite 

be  proved  without  callnig  on  the  writer  to  produce  his    side. 


210  ;  McRae  v.  Morrison,  13  Ired.  (N, 
C.)  L.  46  ;  Smith  v.  Atwood,  14  Ga. 
402  ;  Poiilet  v.  Johnson,  25  Ga.  403  ; 
Bass  V.  Brooks,  1  Stew.  (Ala.)  44 ; 
Glassell  (.'.  Mason,  32  Ala.  719;  Yale 
V.  Oliver,  21  La.  An.  454  ;  Beach- 
board  V.  Luce,  22  Mo.  168  ;  Kellogg 
r.  Norris,  10  Ark.  18;  Wallace  v. 
Wilcox,  27  Tex.  60  ;  Fallon  v.  Dough- 
erty, 12  Cal.  104.  See,  as  limiting 
above  conclusion,  Viles  i;.  Moulton,  13 
Vt.  510. 

1  Hanson  v.  Kelly,  38  Me.  456  ; 
Foster  v.  Mackay,  7  Mete.  (Mass.) 
531  ;  Harper  v.  Hancock,  6  Ired.  (N. 
C.)  L.  124  ;  Linning  v.  Crawford,  2 
Bailey,  591. 

^  AVealherhead  v.  Baskerville,  11 
How.  829  ;  Kimball  v.  Morrell,  4 
Green).  368;  Downing  v.  Pickering,  15 
N.  PL  344 ;  IMcPherson  v.  Rathbone,  7 
Wend.  216;  Lomerson  r.  Hoffman,  24 
N.  J.  L.  6  74;  Baskin  v.  Secchrist,  6 
Penn.  St.  154;  Stone  v.  Thomas,  12 
Penn.  St.  209  ;  Elmondorfi'  v.  Carmi- 
chael,  3  Litt.  (Ky.)472;  Thompson  v. 
Thompson,  9  Ind.  323  ;   Owen  v.  Paul, 


16  Ala.  130;  Hanna  v.  Price,  23  Ala. 
826;  Millard  v.  Hall,  24  Ala.  209; 
Gould  V.  Trowbridge,  32  Mo.  291; 
Stockdale  v.  Young,  3  Strobb.  501  ; 
Reynolds  v.  Jourdan,  6  Cal.  108. 

8  Fitch  V.  Bogue,  19  Conn.  285; 
Jackson  r.  Woolsey,  11  Johns.  R.  446; 
Denn  v.  Pond,  1  Coxe  N.  J.  379; 
Dowler  v.  Cushwa,  27  IMd.  354;  Cul- 
pepper V.  Wheeler,  2  ISIcMul.  66.  See 
Shrowders  v.  Harper,  1  Harr.  (Del.) 
444.  That  execution  of  such  paper 
must  be  first  proved,  see  Kimball  i'. 
Morrell,  4  Greenl.  368;  Jack  v.  Woods, 
29  Penn.  St.  375  ;  Shrowders  v.  Har- 
per, 1  Harr.  (Del.)  444  ;  Klmondorfl" 
V.  Carmichael,  3  Litt.  (Ky.)  4  72; 
Perry  v.  Roberts,  17  Mo.  36;  Atwell 
V.  Lynch,  39  Uo.  519. 

*  Cates  V.  Winter,  3  T.  R.  306; 
Smith  V.  Sleap,  1  C.  &  Kir.  48;  U.  S. 
V.  Winchester,  2  McLean,  135;  Com. 
V.  Emery,  2  Gray,  80;  Harris  f.  Whit- 
comb,  4  Gray,  433;  Waring  v.  War- 
ren, 1  Johns.  R.  340;  Foster  c.  Ncw- 
brongh,  58  N.  Y.  481  ;  Milliken  r. 
Barr,  7  Penn.  St.  23  ;  Garland  v.  Cun- 
151) 


§  153.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

letter  book,  supposing  the  letter  to  be  a  duplicate  original ;  ^ 
though  an  entire  duplicate  original  can  be  produced  without 
calling  on  the  opposite  side  for  the  other.^  A  fortiori^  a  sworn 
copy  of  a  letter  in  the  hands  of  the  opposite  side  cannot  be  re- 
ceived unless  notice  to  produce  be  proved.^  Nor  can  a  demand 
for  a  paper,  prior  to  suit,  be  treated  as  notice  to  produce  ;  *  nor 
does  the  fact  that  the  paper  had  been  on  record  excuse  notice, 
if  the  record  had  been  destroyed.^  A  plaintiff,  however,  has 
been  permitted  to  testify  orally  to  the  amount  of  an  account  of 
sales  given  by  him  to  the  defendant,  without  giving  the  defend- 
ant notice  to  produce,^ 

§  153.  After  refusal  of  the  party  having  the  instrument  to 
After  re-  produce  it,  the  party  calling  for  it  may  produce  sec- 
oncTary  evi-  ondary  evidence  of  its  contents.'^  If  the  secondary  evi- 
dence can     (Jence    so    offered    is    vague    and    indistinct,    this,    it 

be  intro-  o  '  '      ^ 

duced.  must  be  remembered,  is  to  be  imputed,  not  to  negli- 
gence on  the  part  of  the  party  offering  it,  but  to  the  refusal  of 
the  party  holding  the  superior  evidence  to  produce  such  evidence. 
And  a  jury,  under  such  circumstances,  will  be  justified  in  hold- 
ing that  between  two  probable  interpretations  of  the  secondary 
evidence,  they  are  authorized  to  select  that  most  unfavotable 

ningham,  37  Penn.  St.  228;  Anderson  t  r.  j,.  Watson,  2  T.  R.  201  ;  Par- 

V.  Applegate,  13  Ind.  339;  Marlow  v.  tridge  v.  Coates,  Ry.  &  M.  156;  Riggs 

Marlow,  7  7  111.  G33;  Pattersons.  Lin-  v.  Tayloe,  9  Wheat.  483;  Hanson  v. 

der,  14  Iowa,  414;  Ledbetter  v.  Mor-  Eustace,  2  How.  653;  Lowell  v.  Flint, 

ris,  1   Jones  (N.  C.)  L.   545;  Potier  20  Me.  401;  Thayer  v.  Middlesex  Ins. 

V.   Barclay',    15    Ala.   439;    Olive  i'.  Co.  10  Pick.  326;  Narragansett  Bank 

Adams,  50  Ala.  373;  Williams  V.Ben-  v.    Silk  Co.   3   Mete.  282;  Loring  v. 

ton,  12  La.  An.  91;  Lewin  v.  Dille,  Whittemore,  13  Gray,  228;  Com.   v. 

17  Mo.  64  ;  Farmers'  Bk.  r.  Lonergan,  Goldstein,  114  Mass.  272;  Augur  Co. 

21   Mo.  46;  Grimes   v.  Fall,  15    Cal.  u.  Whittier,    117   Mass.    451;  Spring 

63;  Dean  v.  Border,  15  Tex.  298,  For  Garden  Ins.  Co.  v.  Evans,  9  Md.    1; 

the  practice  as  to  inspection  of  papers,  Stoner   v.    Ellis,  6    Ind.    152;  Smith 

see  §  745.  v.  Reed,  7   Ind.  242;    Greenough  v. 

^  Supra,  §  74;  Dennis  v.  Barber,  6  Shelden,  9  Iowa,  503;  Bonner  v.  Ins. 

Serg.  &  R.  420.  Co.  13   Wise.   677;  Faribault  v.  Ely, 

2  See  supra,  §  74 ;  Hubbard  v.  Rus-  2  Dev.  (N.  C.)  L.  67 ;  Bethea  v.  Mc- 

sell,  24  Barb.  401.  Call,  3    Ala.    449;  Bright   v.  Young, 

8  Fosteru.  Newbrough,  58N.Y.481.  15    Ala.    112;  Merwin  v.   Ward,  15 

*  MuUer  v.  Hoyt,  14  Tex.  49.  Conn.   377;  Jackson  v.  Livingston,  7 

6  Murchison  v.   McLeod,    2   Jones  Wend.  136;  West  Branch  Ins.  Co.  v. 

(N.  C.)  L.  239.  Helfenstein,  40  Penn.  St.  289. 

6  First  Nat.  Bk.  v.  Priest,  50  111.  321. 

160 


CHAP.  III.] 


DOCUMENTS   HELD   BY   OPPONENT. 


[§  154. 


to  the  party  refusing,  for  the  reason  that  if  such  interpretation 
be  not  correct,  he  could  defeat  it  by  producing  the  paper.^ 

§  154.  The  rule  admitting  secondary  evidence  after  notice, 
has  been  extended  to  cases  where  the  document  has  been 
proved  to  be  last  seen  in  the  hands  of  the  party  in  interest 
in  the  suit,  though  he  be  not  a  party  to  the  record,^  and 
where  the  document  is  in  the  hands  of  a  person  in  any  sense 
under  the  control  as  agent  or  attorney  of  the  party  notified  to 
produce.^  It  is  no  answer  to  such  a  notice,  that  after  its  re- 
ception the  party  lost  possession  of  the  document  called  for, 
unless  he  has  given  the  opposite  party  due  notice  of  such  loss, 
and  of  the  persons  into  whose  hands  the  document  probably 
fell.'^  It  is  the  duty  of  the  party  in  whose  hands  the  docu- 
ment last  was  to  purge  himself,  by  showing  what  became  of  it.^ 
But  there  must  be  some  evidence,  however  slight,  to  charge 
the  party,  against  whom  the  secondary  evidence  is  offered,  with 
the  document.^ 


1  Clifton  V.  U.  S.4  How.  242;  Cross 
V.  Bfll,  34  N.  II.  83  ;  Eastman  v. 
Amoskcag,  44  N.  H.  143;  Life  Ins. 
Co.  V.  Mut.  Ins.  Co.  7  Wend.  31; 
Barber  v.  Lyon,  22  Barb.  622;  Shortz 
V.  Unangst,  3  Watts  &  S.  45;  Beates 
V.  Retallick,  23  Penn.  St.  288;  Rector 
V.  Rector,  8  111.  105.  See,  however, 
Hanson  v.  Eustace,  2  How.  653;  Mer- 
win  V.  AVard,   15   Conn.  377. 

2  Norton  v.  Ileywood,  20  Me.  359- 
See  Thomas  v.  Harding,  8  Greenl. 
417;  King  v.  Lowry,  20  Barb.  532. 

8  Sinclair  v.  Stevenson,  1  C.  &  P. 
584;  Taplin  v.  Atty,  3  Bing.  164; 
Baldncr  v.  Ritchie,  1  Stark.  338; 
Rush  V.  Peacock,  2  M.  &  Rob.  279. 
When  there  is  no  such  control,  then 
the  person  holding  the  document 
must  be  subpoenaed  to  produce.  Su- 
pra, §  150;  PaFry  v.  May,  1  M.  & 
Rob.  279;  Evans  v.  Sweet,  R.  &  M. 
83  ;  Shepard  v. 'Giddings,  22  Conn. 
282;  Bowman  v.  Wettig,  39  111.  416; 
McCrcary   v.  Hood,    5    Blackf.    316; 

VOL.    I.  11 


McAulay  v.  Earnhart,  1    Jones    (N. 
C.)  L.  502. 

*  Sinclair  v.  Stevenson,  1  C.  &  P. 
585;  Knight  v.  Martin,  Gow  R.  103; 
Jackson  v.  Shearman,  6  Johns.  R.  19; 
Jackson  v.  Woolsey,  11  Johns.  R. 
446. 

5  R.  V.  Thistlewood,  33  How.  St. 
Tr.  757  ;  Harvey  v.  Mitchell,  2  M.  & 
Rob.  36G. 

6  Sharpe  v.  Lamb,  11  A.  &  E.  805; 
Henry  v.  Leigh,  3  Camp.  502. 

The  authorities  as  to  the  fulness 
required  in  the  notice  arc  thus  given 
by  Mr.  Taylor  (Evidence,  §  413).  It 
may  be  difficult  to  lay  down  any  gen- 
eral rule  as  to  what  the  notice  ought 
to  contain,  since  much  must  depend  on 
the  particular  circumstances  of  each 
case;  but  this  much  is  clear,  first,  that 
no  misstatement  or  inaccuracy  in  iho 
notice  will  be  deemed  matcii;d,  if  it  bo 
not  really  calculated  to  mi.-lead  iho 
opponent.  Justice  i'.  Kistob,  1  Post. 
&  F.  258;  Graham  r.  Oldis,  Ibid.  2G2. 
101 


§  155.] 


THE  LAW   OF   EVIDENCE. 


[book  I. 


§  155.  Wlien  tlic  document  is  in  court,  a  notice  given  at  the 
trial  is  generally  sufficient ;  ^  but  if  it  be  not  in  court,  the 
notice  must  be  given  a  sufficient  period  before  the  trial 
to  enable  the  party  called  upon  conveniently  to  produce 


Notice 
must  be 
timely. 


And  next,  that  it  is  not  necessary,  by 
condescending  minutely  to  dates,  con- 
tents, parties,  &c.,  to  specify  the  pre- 
cise documents  intended.  Indeed,  it 
may  be  dangerous  to  do  so,  since  if 
any  mattrial  errors  were  to  creep  into 
the  particulars,  the  party  sought  to  be 
.affected  by  the  notice  might  urge,  with 
possible  success,  that  he  had  been 
misled  thereby. 

If  enough  is  stated  on  the  notice  to 
induce  the  party  to  believe  that  a  par- 
ticular instrument  will  be  called  for, 
this  will  be  sufficient.  See  Rogers  v. 
Custance,  2  M.  &  Rob.  181.  Thus,  a 
notice  to  produce  "  all  letters  written 
by  the  plaintiff  to  the  defendant,  re- 
lating to  the  matters  in  dispute  in  the 
action ; "  Jacob  f.  Lee,  2  M.  &  Rob. 
33,  per  Patteson,  J. ;  Conybeare  v.  Par- 
ries, 5  Law  Rep.  Ex.  16;  or  "all 
letters  written  to  or  received  by  the 
plaintiff  between  the  years  1837  and 
1841,  both  inclusive,  by  and  from  the 
defendants,  or  either  of  them,  or  any 
person  in  their  behalf,  and  also  all 
books,  papers,  &c.,  relating  to  the  sub- 
ject matter  of,  this  cause  ;  "  Morris  v. 
Hauser,  2  M.  &  Rob.  392,  per  Ld. 
Denman;  C.  &  Marsh.  29,  S.  C.  nom. 
Morris  v.  Ilannen  ;  has  been  held  suf- 
ficient to  let  in  parol  evidence  of  a 
particular  letter  not  otherwise  speci- 
fied. In  these  cases  the  names  of  the 
parties  by  and  to  whom  the  letters 
were  addressed  appeared  on  the  no- 


tice, and  perhaps  this  circumstance 
sufficiently  distinguishes  them  from  an 
older  decision  [this  distinction  was 
pointed  out  and  relied  upon  by  Patte- 
son, J.,  in  Jacob  v.  Lee,  2  M.  &  Rob. 
33],  where  a  notice  to  produce  "  all 
letters,  papers,  and  documents,  touch- 
ing or  concerning  the  bill  of  exchange 
mentioned  in  the  declaration,  and  the 
debt  sought  to  be  recovered  "  (France 
V.  Lucy,  Ry.  &  M.  341,  per  Best,  C.  J.), 
was  held  too  vague  to  admit  secondary 
proof  of  a  notice  of  dishonor  sent  by 
plaintiff  to  defendant.  The  authority, 
however,  of  this  last  case  has  been 
shaken  by  a  subsequent  decision  where 
a  notice  to  produce  "all  accounts  re- 
lating to  the  matters  in  question  in 
this  cause,"  was  held  to  point  out  with 
sufficient  precision  a  particular  account 
relating  to  a  small  part  of  the  work, 
though  it  appeared  that  many  such 
accounts  for  different  parts  of  the  work 
had  been  rendered  by  the  plaintiff  to 
the  defendant.  Rogers  v.  Custance,  2 
M.  &  Rob.  179.  The  case  of  Jones  v. 
Edwards,  McCl.  &  Y.  139,  was  an  ac- 
tion against  four  defendants,  as  owners 
of  a  sloop,  to  recover  an  account  for 
warehousing  the  rigging  of  the  vessel. 
In  order  to  prove  that  one  of  the  de- 
fendants was  a  joint  owner,  the  plain- 
tiff called  for  a  letter,  which  was  stated 
to  liave  been  written  nine  years  before 
by  this  defendant  to  the  son  of  another 
defendant,  and  relied  upon  a  "  notice 


1  Dwyer  v.  Collins,  7  Exch.  639  ; 
Brandt  v.  Klein,  17  Johns.  335;  Anon. 
Anthon,  N.  Y.  199;  McPherson  v. 
Rathbone,  7  Wend.  216  ;  Atwell  v. 
Miller,  6  iMd.  10;  Chattes  v.  Rant,  20 
Oh.  132;  Dana  v.  Bovd,  2  J.  J.  Marsh. 
162 


587;  Brown  i:  Isbellj  11  Ala.  1009; 
Griffin  V.  Sheffield,  38  Miss.  359.  The 
party's  attorney  may  be  compelled  to 
say  whether  he  has  it  in  court.  Ibid. ; 
Rhoades  r.  Selin,  4  Wash.  C.  C.  718. 
Infra,  §  585. 


CHAP.  Ill,] 


NOTICE   TO   PRODUCE   DOCUMENTS. 


[§  155. 


it.^  The  question  of  the  length  of  notice  is  dependent  upon  that 
of  the  object  for  which  the  notice  is  given.  Is  it  to  enable  the 
party  served  to  have  the  paper  in  court  ?  Then  time  enough  for 
this  purpose  is  all  that  is  required.  Is  it  to  enable  the  party 
served  to  prepare  evidence  either  to  weaken  or  to  fortify  the 
paper  called  for  ?  This  view,  though  at  one  time  current  in  Eng- 
land, has  now  been  finally  overruled  by  the  court  of  exchequer ; 
it  being  held  that  the  sole  object  of  such  a  notice  is  to  enable  the 
party  to  have  the  document  in  court  to  produce  it  if  he  likes,  and 
if  he  does  not,  then  to  enable  the  opponent  to  give  secondary 
evidence.  "  If,"  said  Parke,  B.,^  "  this  (i.  e.  the  reason  suggested 
by  the  above  authorities)  be  the  true  reason,  the  measure  of  the 
reasonable  length  of  notice  would  not  be  the  time  necessary  to 
produce  the  document,  a  comparatively  simple  inquiry,  but  the 
time  necessary  to  pi'ocure  evidence  to  explain  or  support  it,  a 
very  complicated  one,  depending  on  the  nature  of  the  case  and 
the  document  itself  and  its  bearing  on  the  cause."  It  was  there- 
fore ruled  that  where  a  party  to  a  suit,  or  his  attorney,  has  a 
document  with  him  in  court,  he  may  be  called  on  to  produce  it 


to  produce  letters  and  copies  of  let- 
ters, and  all  books  relating  to  the 
cause." 

The  court  decided  that  the  notice 
was  too  uncert.ain,  and  no  sensible  man 
could  entertain  a  dilFerent  opinion. 

In  one  case,  where  the  notice  mis- 
described  the  title  of  the  cause,  it  was 
held  to  be  invalid.  Harvey  v.  Mor- 
gan, 2  Stark.  R.  17.  (The  notice  in 
that  case  was  entitled  "  A.  &  B.  as- 
signees of  C.  &  D.  I'.  E."  instead  of  "A. 
&  B.  as.>ignees  of  C.  B.  r.  E.")  But 
as  the  strict  application  of  this  rule,  in 
cases  wlici-e  it  is  evident  that  the  party 
served  has  not  been  misled,  might  be 
productive  of  serious  injustice,  it  is 
hoped  that  at  the  present  day  it  would 
not  be  allowed  to  prevail,  unless  the 
misdescription  were  of  a  flagrant  nat- 
ure. Indeed,  the  court  of  cxchcciuer 
has  thrown  out  an  intimation  to  this 
effect;  (or  where  a  notice  was  objected 
to  on  the  ground  that  it  was  entith-d 


(by  mistake)  in  a  wrong  court,  Mr. 
Baron  Alderson  discountenanced  the 
objection,  saying  :  "  One  dops  not 
know  where  we  are  to  stop.  ^Vould 
the  notice  be  bad  if  one  of  the  names 
was  spelt  wrong?  ....  At  the  time 
of  the  decision  in  Harvey  r.  Morgan, 
the  courts  were  much  more  strict  than 
now  as  to  matters  of  this  nature." 
Lawrence  r.  Clark,  14  M.  &  W.  251. 

1  R.  V.  Hankins,  2  C  &  K.  823  ;  R. 
V.  Kitson,  Pearce  &  D.  187  ;  Shreve 
V.  Dulany,  1  Craneh  C.  C.  499  ; 
Durkee  r."  Leland,  4  Vt.  C12  ;  Jefford 
V.  Ringgold,  G  Ala.  .544  ;  Cody  v. 
Hough,  20  III.  43;  Barton  v.  Kane,  17 
Wise.  37;  Divers  v.  l'\i!ton,  8  Gill  & 
J.  202.  As  to  English  practice,  Fee 
Taylor's  Ev.  §  415;  George  i>.  Thomp- 
son, 4  Dowl.  G56  ;  Atkin^  r.  Meredith, 
4  Dowl.  658;  Meyriek  r.  \Voods,  C.  & 
]\Iarsh.  452;  R.  v.  Ilamp,  G   Cox  C.  C. 

Km. 

-  Dwver  t'.  Collins,  7  Exch.  G39. 

1G3 


§  157.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

without  previous  notice,  and  in  the  event  of  his  refusing,  the  op- 
posite party  may  give  secondary  evidence.^  But  where  tlie  time 
is  insullicient  to  enable  the  documents  to  be  brought  in,  and 
where  there  is  no  bad  faith  or  neghgence  in  the  party  in  putting 
them  at  a  distance,^  then  the  notice  is  not  sufficient  to  admit 
secondary  evidence.^ 

§  156.  Notice  to  produce  does  not  invest  the  instrument  called 

for  with  the  attribute  of  evidence ;  for  if  it  did,  testi- 

produce"      mony  incapable  of  proof  might  be  brought  into  a  case 

does  not       bv  sucli  notice."*     But  where  A.  calls   upon   B.  to  pro- 

inalcc  an  "^  .... 

instrument    duce  a  document,  and  B.  produces  it,  this  primd  facie 

evidence.  •  i       i  •  c  •  i      i  a    » 

avoids  the  necessity  or  proving  such  document  on  A.  s 
part,  where  it  is  relied  on  by  B.  as  part  of  his  title.-^  But 
A.  is  not  obliged  to  put  in  evidence  the  papers  called  for  by 
him  ;  *^  though  when  A.,  after  notifying  B.  to  produce  a  paper  on 
trial,  takes  such  paper  and  inspects  it,  so  as  to  become  acquainted 
with  its  contents,  then  A.  is  bound  to  treat  the  paper,  if  relevant, 
as  his  evidence.'^  The  law  in  this  respect,  however,  has  been 
modified  by  the  statutes  making  parties  witnesses,  and  authoriz- 
ing the  compulsory  production  of  papers.  Under  these  statutes 
it  may  be  argued  that  a  document  introduced  by  compulsion  is 
open  to  counter-proof.^ 

§  157.  A  party  is  not  permitted,  after  declining  to  produce 
a  paper,  'to  put  it  in  evidence,  after  it  has  been  proved  by  his 

1  See  Reid  v.  Colcock,  1  Nott  &  223;  Jackson  v.  Ivingsley,  17  Johns. 
McC.  592.  R.  157  ;  St.  John  v.  Ins.  Co.  2  Duer, 

2  As  to  this,  see  R.  v.  WagstafF,  Ry.  419.  See,  however,  Rhoades  v.  Selin, 
&  M.  327  ;  S.  C,  2  C.  &  P.  123  ;  4  Wash.  715  ;  Roger  r.  Hoskins,  15 
Drabble  v.  Donner,  Ry.  &  M.  47;  Ga.  270  ;  Herring  v.  Rogers,  30  Ga. 
Sturge  r.  Buchanan,  10  A.  &  E.  598.  615;    Williams   v.   Keyser,    11     Fla. 

8  Leaf  V.   Butt,  C.   &  "Marsh.  451  ;  234. 

Meyrick  v.  AVoods,  C.  &  Marsh.  452;  «  Blight  v.  Ashley,   Pet.  C.  C.  15  ; 

Firkins   v.   Edwards,  9  C.   &  P.  478  ;  State  v.  Wisdom,  8  JPorter,  511. 

Holt  V.  Miers,  9  C.  &  P.  195  ;  Byne  v.  '  Wilson   v.  Bowie,  1   C.  &  P.  10  ; 

Harvey,  2  M.-&  Rob.   89;    Vice   v.  Calvert  v.   Flower,  7   C.   &    P.  386; 

Anson,  4  M.  &  M.  97.  Wharam  v.  Routledge,  5  Esp.  235  ; 

*  Krise  v.    Neason,    66    Penn.    St.  Blake  v.  Russ,  33  Me.  360  ;  Clark  v. 

258  ;    Moulton   v.   Mason,    21    Mich.  Fletcher,  1  Allen,  53  ;  Long  v.  Drew, 

364  ;  McCrackcn  V.  McCrary,  5  Jones  114  Mass.  77;  Anderson  v.   Root,  16 

(N.  C),  L.  399  ;  Rives  v.  Thompson,  Miss.    362  ;    though    see    Austin    w. 

41  Ga.  68.  Thompson,  45  N.  H.  113. 

6  Betts  V.    Badger,    12   Johns.    R.  8  Moulton  v.  Mason,  21  Mich.  364. 
164 


CHAP.  III.] 


NOTICE   TO  PRODUCE   DOCUMENTS. 


[§  158. 


opponent  by  parol.     Should  he  be  allowed  to  do  so,  he  would  be 
able  to  hold  back  the  paper  until  he  saw  whether  its    „   . 

i     i  Party  re- 

parol  rendering  would  be  favorable  or  unfavorable  to   fi'sing  to 

1  •  111-  ■  1  1  •       proihice 

him,  and  thus  to  obtain  an  unjust  advantage  over  his  imund  by 
opponent.^  The  same  rule  is  applied  when  the  party 
calling  for  the  paper  has  proved  a  copy,  in  wliicli  case  the  holder 
of  the  paper  cannot  produce  it,  and  object  to  the  rea'ding  of  it 
without  proof  by  an  attesting  witness.^  Nor  can  he,  after  refus- 
ing to  produce,  put  the  paper  into  the  hands  of  his  opponent's 
witnesses  for  cross-examination.^ 

§  158.  If  a  party  called  upon  to  produce  a  particular  paper 
produces  it,  and  offers  to  establish  its  genuineness,  the    when 
party  calling  for  the  paper  cannot,  if  he  waive  reading   {^^^^j^^i^g^ 

the  paper,  offer  secondary  proof  of  its  contents.     The    <>pp<>^''e 
1  J.  .       ,  -I  •  •     1       paitv  can- 

best  proof  IS  the  paper  itself,  and  this,  unless   it   be    n«it  imt  in 

shown  to  have  been  tampered  with,  must  be  put  in  evi-   proof.    " 

deuce.* 


1  Doon  V.  Donaher,  113  Mass.  151. 

2  Jackson  i'.  Allen,  3  Stark.  R.  74  ; 
Doe  V.  Hodgson,  12  A.  &  E.  185  ;  2 
M.  &  Rob.  283  ;  Edmonds  v.  Challis, 
7  C.  B.  413  ;  6  D.  &  L.  581  ;  Collins 
V.  Gaslion,  2  F.  &  F.  4  7.  Sec  Lewis 
V.  Hartley,  7  C.  &  P.  405  ;  Tyng  v. 
U.  S.  Submarine  Co.  1  Hun  (N.  Y.) 
IGl. 

8  Doe  V.  Cockell,  6  C.  &  P.  527. 

*  Stitt  V.  Huidekopers,  17  Wall. 
384. 

The  Roman  law  makes  the  follow- 
ing distinction  between  a  paper  vol- 
untarily produced  by  a  party  to  make 
out  his  own  case,  and  a  paper  he  is 
compelled  to  produce  by  call  from  the 
opposite  side.  The  first  he  accepts 
with  all  its  (pialifications  ;  the  second 
is  not  made  evidence  by  the  mere 
fact  that  it  is  thus  brought  into  court. 
As  to  the  first,  the  party  producing 
is  estopped  from  contesting  genuine- 
ness. But  beyond  the  recognition 
of  the  genuineness  and  authenticity 
of  the  instrument,  the  effect  of  pro- 
duction does  not  extend.    Facts  stated 


in  the  instrument,  outside  of  such 
genuineness  and  authenticity,  are  in 
any  view  open  to  impeachment  by 
the  party  producing  the  instrument. 
Were  it  otherwise,  as  is  well  argued 
(Weiske,  Rechtslex.  xi.  659),  the 
damage  done  to  business  would  be 
great.  A  debtor,  in  rendering  his  ac- 
counts to  his  creditor,  would  be  able, 
by  introducing  entries  favorable  to 
himself,  at  least  to  make  the  accounts 
useless  to  the  creditor.  Wherever  a 
qualification  is  so  inwrought  in  an 
admission  as  to  form  part  of  it,  then 
necessarily  the  admission  cannot  be 
used  against  the  admitting  i)arty  with- 
out the  (pialification.  But  when,  to 
an  a<lmission  of  a  contract  is  attached 
an  independent  memorandum,  opirat- 
ing  to  defeat  such  contract,  then  such 
memorandum  is  to  be  regarded  as  uni- 
lateral, amounting  only  to  a  claim  by 
the  party  making  it,  not  assented  to 
by  the  opposing  party,  and  therefore 
open  to  attack  by  the  latter.  To  such 
a  memoranihnn  the  maxim,  Qui  tiictt 
consenlirc  videtur,  does  not  apply.    The 

IGo 


§  IGl.] 


THE   LAW    OF   EVIDENCE. 


[book  r. 


§  159.  Notice  to  produce  a  document  is  not  necessary  in  tort 
brought  for  its  conversion  or  detention  or  loss  ;  ^  nor  in 
respect  to  a  document  described  in  the  pleadings  as  that 
on  which  the  suit  is  brought  ;2  nor  when,  from  any 
reason  connected  with  the  form  of  suit,  the  party  is 
bound  to  know  that  he  is  charged  with  the  document 
and  will  be  required  to  bring  it  into  court.^  But  where  the 
maker  of  negotiable  paper  does  not  deny  his  signature,  the 
plaintiff,  who  is  not  then  bound  to  produce  the  paper, 
may  object  to  the  defendant's  giving  secondary  evidence 
of  the  paper  without  notice  to  produce.^ 

§  IGO.  Nor  is  notice  to  produce  necessary  when  the 
party  notified  is  charged  with  fraudulently  obtaining 
the  document  to  be  proved  ;  ^  nor  when  he  is  charged 
with  its  theft  or  forgery.*' 

If  a  document  is  conceded  by  the  party,  in  whose 
hands  it  was  last  heard  from,  to  have  been  lost  or  de- 
stroyed, then  notice  to  him  to  produce  is  unnecessary. 
He  is  estopped  by  his  admission  from  setting  up  such 


Notice  not 
necessary 
for  instru- 
ment on 
which  suit 
is  brought. 


Nor  when 
the  party 
notified  is 
chartri'il 
with  fraiul- 
ulciitly  ob- 
taining; or 
withiiolil- 
inij  liic 
document. 


§1G1, 

Nor  as  to 
document 
whose  loss 
is  admit- 
ted. 


law  doi's  not  compel  a  party  on  -wliom 
a  claim  is  made  to  at  once  protest 
against  such  claim  ;  and  a  fortiori,  a 
party,  receiving  from  another  an  ac- 
knowledgment of  indebtedness,  coup- 
led with  a  defeasance,  cannot,  by  re- 
taining such  acknowledgment,  be  re- 
garded as  admitting  the  truth  of  the 
defeasance.  See  this  argued  at  length 
in  Wei^^ke's  Reehtslexicon,  xi.  559. 

^  Scott  V.  Jones,  4  Taunt.  865  ; 
How  V.  Hall,  14  East,  274  ;  Hays  j;. 
Riddle,  1  Sanf.  248. 

^  Jolley  V.  Taylor,  1  Camp.  143  ; 
Dana  v.  Conant,  30  Vt.  246. 

8  Colling  V.  Treweek,  6  B.  &  C. 
S98  ;  Scott  V.  Jones,  4  Taunt.  865  ; 
Read  r.  Gamble,  10  A.  &  E.  597  ; 
Kellar  v.  Savage,  20  Me.  199  ;  Ross 
V.  Bruce,  1  Day,  100  ;  McClean  v. 
Hertzog,  6  S.  &  R.  154. 

*  Goudered  v.  Armour,  3  Q.  B.  956. 
As  to  notice  to  produce  deed  of  which 
there  is  a  registry,  see  supra,  §  114. 

166 


5  Dwyer  v.  Collins,  7  Ex.  R.  639  ; 
Mitchell  V.  Jacobs,  1  7  111.  236  ;  Gray 
V.  Kernahan,  2  Mill  (S.  C),  65  ;  Mor- 
gan V.  Jones,  24  Ga.  155. 

6  R.    V.    Aickles,    1    Leach,    294; 
Bucher  v.  Jarrett,  3   Bos.  &  P.  145  ; 
How  V.  Hall,  14  East,    275 ;    R.    v. 
Downham,   1   F.  &   F.  386  ;  R.  v.  EI- 
worthy,  Law  R.  1  C.  C.  103  ;  Stabe  v. 
Mayberry,    48  Me.    218;    Nealley  v. 
Greenough,  25  N.  H.  325 ;  People  i'. 
Holbrook,  13  Johns.   R.   90  ;  Hardin 
V.  Kretsinger,  17  Johns.  R.  293;  Ham- 
mond   V.   Hopping,    13    ^Yend.    505 
Forward   v.    Harris,    30    Barb.    338 
People   V.  Kingsley,   2   Cowen,   522 
Com.   V.  Messinger,   1    Binney,   273 
State   V.  Potts,  4  Halst.  26  ;  Pendle- 
ton V.  Com.   4   Leigh,    694  ;   Rose  v. 
Lewis,    10   Mich.    483;    McGinnis  v. 
State,  24  Ind.  500  ;  Hart  v.  Robinett, 
5  Mo.  11.     See,  however,  contra,  as 
to  charge  of  forging  deed,  R.  v.  Ha- 
wortb.  4  C.  &  P.  254. 


CHAP.  111.] 


NOTICE   TO    PRODUCE   DOCUMENTS. 


[§  162. 


possession  of   the   paper  as   would    make   a  notice    to   produce 

of    USe.l  No  notice 

S  162.  It  stands  to  reason  that  notice  to  produce  a   nee-icd  as 

o  _  _  A  _  to  notice  to 

notice  is  not  a  prerequisite  to  proving  such  notice.^  produce. 


1  Foster  v.  Pointer,  9  C.  &  P.  718; 
How  r.  Hall,  14  East,  276;  Doe  v. 
Spitty,  3  B.  &  Ad.  182. 

2  Philipson  v.  Chase,  2  Camp.  Ill; 
Central  Bk.  v.  Allen,  16  Me.  41  ; 
Leavitt  v.  Simes,  3  N.  H.  14;  Eagle 
Bank  v.  Chapin,  3  Pick.  180;  Morrow 
V.  Com.  48  Penn.  St.  305  ;  Christy  v. 
Home,  24  Mo.  242. 

"  In  Philipson  v.  Chase,  2  Camp. 
Ill,  Lord  Ellenborough  observes:  'I 
approve  of  the  practice  as  to  notices 
to  quit,  and  I  remember  when  the 
point  was  first  ruled  by  Wilson,  J., 
who  said,  that  if  a  duplicate  of  the 
notice  to  quit  was  not  of  itself  suffi- 
cient, no  more  ought  a  duplicate  of 
the  notice  to  produce,  and  thus  no- 
tices niiizht  be  reejuired  in  injinitwn.' 
The  fallacy  of  this  reasoning  (says 
Mr.  Taylor,  §  420)  is  ably  exposed 
in  3  St.Ev.  730." 

Mr.  Taylor,  however,  argues  "that 
the  extension  of  the  exception  may 
be  justified  partly  by  the  experienced 
inconvenience  attendant  on  a  strict 
observance  of  tlie  rule  requiring  no- 
tice; 2  Ph.  Ev.  226,  n.  5  ;  partly  be- 
cause the  secondary  evidence  that  is 
usually  offered  of  a  notice  is  a  copy 
of  the  paper  sent,  which  partakes  in 
great  measure  of  the  character  of  a 
duplicate  original;  Kine  v.  Beaumont, 
3  B.  &  B.  291  ;  and  chiefly  because 
it  constantly  happens  that  the  oppo- 
site party  is  well  aware,  from  the 
nature  of  the  suit,  that  he  will  be 
charged  with  the  possession  of  the 
original  document.  Colling  v.  Tre- 
week,  6  B.  &  C.  399,  400,  per  Bayley, 
J. ;  Robinson  v.  Brown,  6  Com.  B. 
754,  per  Maule,  J. 

"  On  one  or  other  of  these  grounds, 


it  has  been  held  that,  in  order  to  let  in 
proof  by  a  copy,  if  not  any  species  of 
secondary  evidence,  no  notice  is  re- 
quired  to  produce  a  notice   to   quit; 
Doe  V.   Somerton,  7   Q.   B.  58  ;  Jory 
V.   Orchard,  2   B.   &   P.   41,   per  Ld. 
Eldon ;  Colling  v.  Treweek,  G  B.  &  C. 
398,  per  Bayley,  J.     See  11.  i'.  Mort- 
lock,   7  Q.   B.   459  ;  a  notice  of  dis- 
honor; Swain  v.  Lewis,  2  C,  M.  &  R. 
2G1  ;  5  Tyr.  998,  6\  C;   Kine  v.  Beau- 
mont, 3  B.  &  B.   288;  7  Moore,  112, 
S.   C:  Ackland  v.  Pearce,  2  Camp. 
601,   per   Le   Blanc,  J.  ;   Roberts  v. 
Bradshaw,  1  Staik.  R.  28  ;  Colling  v. 
Treweek,  6  B.  &  C.  398,  per  Bayley, 
J.      These  cases — the   first    two   of 
which  were  decided   after  conferring 
with  the  judges  of  the  other  courts  — 
put  the  question   beyond   all   dispute, 
and  overrule  the  earlier  decisions  of 
Langdon  v.   Kutts,  5   Esp.   156,  and 
Shaw  V.  Markham,  Pea.  U.  165,  pro- 
vided the  action  be  brought  upon  the 
bill,    but  not  otherwise.     Lanauzc  v. 
Palmer,  M.  &  M.    31,  per  Abbott,  C. 
J."     The  same  indulgence   has    been 
extended    to    notices     of    actions,   or 
written    demands,   which    are    neces- 
sary to  entitle  the  plaintiff  to  recover. 
Jory  V.  Orchard,  2  B.  &  P.  39.     So 
no  notice  is  needed  as  to  bills  of  costs 
of  solicitors,  attorneys,  and  p.irliamcn- 
tary  agents  delivered  pursuant  to  stat- 
ute.    Colling  V.  Treweek,  6   B.  &  C. 
394;  9  D.  &  R.  456,  5.  C. 

"  On  one  occasion,  when  an  action 
was  brought  against  a  surety,  on  a 
bond  conditioned  to  pay  to  the  plain- 
tifl",  within  six  months  after  notice, 
the  stun  that  should  become  due  from 
the  principal,  a  notice  to  produce  this 
notice    was   held    necessary    by  Lord 

167 


§  163.] 


THE   LAW   OF  EVIDENCE. 


[book  I. 


§  163.  The  mere  fact  that  a  letter  was  sent,  can  be 
proved  without  notice  to  produce  the  letter  ;  ^  and  so 
as  to  facts  relating  to  the  existence  and  execution  of 
tlie  paper  and  not  to  its  contents.^ 


Collaternl 

facts  as  to 

document 

may  be 

proved 

without 

notice. 


EUenboroiigh,  on  the  ground  that  it 
was  not  a  mere  notice,  but  in  the  nat- 
ure of  a  statement  of  account  be- 
tween the  plaintiff  and  the  principal. 
Grove  V.  Ware,  2  Stark.  R.  174. 
Whether  this  case  would  now  be  con- 
sidered a  binding  authority  may  be 
well  questioned,  since  in  principle  it  is 
difficult  to  distinguish  it  from  several 
of  the  cases  cited  above,  in  which  the 
notice  to  produce  has  been  deemed 
unnecessary.  But,  be  this  as  it  may, 
the  judges  have  determined,  in  a  case 
where  two  parties  have  become  sure- 
ties, by  a  joint  and  several  bond,  for 
the  payment,  within  one  month  after 
notice   should    have    been    given    to 

168 


them,  of  such  sum  as  should  be  due 
from  their  principal,  that  the  service 
of  notice  upon  one  of  the  parties  could 
not  be  proved  in  an  action  brought 
against  another,  by  producing  the  du- 
plicate of  the  notice,  but  the  first 
party  should  have  been  subpoenaed 
to  produce  the  original,  or  to  account 
for  its  non-production.  Robinson  v. 
Brown,  3  Com.  B.  754.  Indeed,  the 
exception  would  seem  to  be  always 
inapplicable  to  cases  in  which  the  no- 
tice has  been  served  on  a  third  per- 
son."    Taylor's  Evidence,  §  42. 

1  Webster  v.  Clark,  30  N.  H.  245. 

2  Gist  V.  McJunkin,  2  Rich.  S.  C. 
154;  Lott  V.  Macon,  2  Strobh.  178. 


CHAPTER  IV. 


PEBIARINESS  AS  TO  ORAL  TESTIMONY. 


I.  Hkarsay  generally  Ijjadmissible. 

Hearsay  in  its  largest  sense  convert- 
ible with  non-original,  §  170. 

Non-original  evidence  generally  inad- 
missible, §  171. 

Objections  to  such  evidence,  §  172. 

Acts  ma}'  be  hearsay,  §  173. 

Interpretation  is  not  hearsaj',  §  174. 

Testimony  of  non-witnesses  not  or- 
dinarih'  receivable  when  reported 
hy  another,  §  175. 

So  of  public  acts  concerning  stran- 
gers, §  176. 

II.  EXCEI'TIOXS  AS  TO  WlTXESS  ON  FOR- 
MER Trial. 

Evidence  of  deceased  witness  in 
former  trial  admissible,  §  177. 

So  of  witnesses  out  of  jurisdiction 
or  subsequently  incompetent,  §  178. 

So  of  insane  or  sick  witness,  §  179. 

Mode  of  proving  evidence  in  such 
case,  §  180. 

III.  EXCKI'TION     AS     TO      DEPOSITIONS     IN 

PEurKTUAji  JIemoriam. 
Practice  as  to  such  depositions,  §  181. 

IV.  Exception  as  to  Matters  ov  Gen- 

eral   Interest    and     Ancient 

Possession. 
Reputation  of  community  admissible 

as  to  matters  of  public  interest,  §  183. 
Facts  of  only  personal  interest  cannot 

be  so  proved,  §  180. 
Insulated  private  rights  cannot  be  so 

affected,  §  187. 
Witnesses   to  such   hearsay  must  be 

disinterested,  §  190. 
Declarations     of     deceased     persons 

pointing  out  boundaries  admissible, 

§  191. 
Declarations  must  be  ante  litem  mo- 

tam,  §  193. 
Ancient  documents  receivable  to  prove 

ancient  possession,  §  194. 


Such  documents  must  come  •  from 
proper  custody,  §  194-5. 

Need  not  have  been  contemporaneous 
possession,  §  199. 

Verdicts  and  judgments  receivable  for 
same  purpose,  §  200. 
V.  Exception  as  to    Pedigree,  Rela- 
tionship, Birth,  Marriage,  and 
Death. 

Declarations  admissible  as  to  pedigree, 
§201. 

Relationship  of  declarants  necessary 
to  admissibility,  §  202. 

Pedigree  may  be  proved  by  reputa- 
tion, §  205. 

Statements  of  deceased  relatives  inad- 
missible, but  are  to  be  scrutinized 
as  to  motive,  §  207. 

Such  declarations  may  extend  to  facts 
of  birth,  death,  and  marriage, 
§  208, 

Writings  of  deceased  ancestor  admis- 
sible for  same  purpose,  §  210. 

And  so  may  conduct,  §  211. 

Declarations  may  go  to  facts  from 
whicii  relationship  may  be  inferred, 
§212. 

Must  iiave  been  ante  litem  motam, 
§  213. 

Declarant  must  be  dead,  §  215. 

Must  have  been  related  to  the  family, 
§210. 

Dissolution  of  marriage  connection  by 
death  does  not  cxchulc,  §  217. 

Relationship  must  be  proved  aliunde, 
§  218. 

Ancient  family  records  and  monu- 
ments admissible  for  same  purpose, 
§  219. 

So  of  inscriptions  on  tombstones  and 
rings,  §  220. 

So  of  pedigrees  and  armorial  bearings, 
§  221. 

169 


§  170.] 


THE   LAW    OF   EVIDENCE. 


[hook  I. 


Death  maj'  by  proved  by  reputation, 

§223. 
So  iiiiiy  iiiarriaf^e,  §  224. 
reculiaiity  in  suits  for  adultery,  §  225. 
vi.  exckition  as  to  slclk-dissekving 

Dkci.auations  of  deceased  Pek- 

soxs. 
Such  declarations  receivable,  §  22G. 
No  objection  that  such  declarations 

are  based  on  hearsay,  §  227. 
Declarations  must  be  self-disserving, 

§228. 
Independent    matters  cannot    be   so 

proved,  §  231. 
Admissible,    though    other    evidence 

could  be  had,  §  232. 
Position  of  declarant  must  be  proved 

(ili'inde,  §  233. 
Declaration  must  be  brought  home  to 

declarant,  §  235. 
Statements  in  disparagement  of  title 

receivable  against  strangers,  §  237. 
VII.  ExcEPTio.x  asto  Business  Eutkies 

OF  Deceased  Persons. 
Entries  of  deceased  or  non-procurable 

persons  in  the  course  of  their  busi- 
ness admissible,  §  238. 
I  Entries  must  be  original,  §  245. 

Must  be  contemporaneous  and  to  the 

point,  §  246. 
But  cannot  prove  independent  matter, 

§247. 
So  of  survej'ors'  notes,  §  248. 
So   of    notes   of    counsel   and    other 

officers,  §  249. 
So  of  notaries'  entries,  §  251. 


VIII.   E.\CEI'TI0N    A3    TO   GENERAL    REPU- 
TATION WHEN  SUCH  I.S  Material. 

Admissible  to  bring  home  knowledge 
to  a  party,  §  252. 

But  inadmi>sible  to  prove  facts,  §  253. 

Hearsay  is  admissible  when  hearsay 
is  at  issue,  §  254. 

Value  so  provable,  §  255. 

And  so  as  to  character,  §  256. 
IX.  Exception  as  to  refreshing  Mem- 
ory OF  Witness. 

For  this  purpose  hearsay  admissible, 
§257. 
X.  Exception  as  to  res  ge.stae. 

Res  gestae  admissible  though  hearsay, 
§  258. 

Coincident  business  declarations  ad- 
missible, §  262. 

And  so  of  declarations,  coincident 
witli  torts,  §  203. 

"What  is  done  or  exhibited  at  such  a 
time  ma}-  be  proved,  §  264. 

Declarations  inadmissible  if  there  be 
opportunity  for  concoction,  §  265. 

Declarations  inadmissible  to  explain 
inadmissible  acts  ;  nor  are  declara- 
tions admissible  without  acts,  §  266. 

Inadmissible   if   the  witness  himself 
could  be  obtained,  §  267. 
XI.  Exception   as    to  Declarations 
concerning        Party's        own 
Health  and  State  of  Mind. 

Declarations  of  a  party  as  to  his  own 
injuries  admissible,  §  268. 

So  as  to  his  condition  of  mind  when 
such  is  at  issfle,  §  269. 


I.    HEARSAY  GENERALLY   INADMISSIBLE. 

170.    Mr.    Bentham,^   in    analyzing   unoriginal    evidence, 


gives  the  following  specifications  :  — 

1.  Supposed  oral  throtigh  oral ;  which  he  defines  to 


Hearsay, 
in   its 

sense  con-  be  "  Supposed  orally  delivered  evidence  of  a  supposed 
withnon-  extra-judicially  narrating  witness,  judicially  delivered 
oiig'"a .  yiyf^  yoce  by  the  judicially  deposing  witness;"  whicli 
he  declares  to  be  the  only  species  of  unoriginal  evidence  to  which 
the  term  "  hearsay  "  is  strictly  applicable. 

2.  Supposed  oral  through  "  scriptitious,"  or  written. 

3.  Supposed  scriptitious  through  oral. 

4.  Supposed  scriptitious  through  scriptitious. 

*  Rationale  of  Jud.  Ev.,  Lond.  1827,  III.  439,  Jas.  Mill's  ed. 
170 


CHAP.  IV.]  HEARSAY.  [§  172. 

To  which  may  be  added,  — 

5.  Supposed  material,  through  oral  or  scriptitious. 

The  third  and  fourth  of  these  modifications  have  been  already 
partially  considered  under  the  general  head  of  secondary  evi- 
dence. The  fifth,  as  of  comparatively  unfrequent  occurrence, 
may  be  noticed  at  the  outset. 

§  171.  Suppose,  for  instance,  after  a,  post-mortem  examination, 
in  a  case  where  poisoning  is  charged,  portions  of  the  Nmi-orig- 
remains  are  given  b}^  E.,  the  examining  physician  H^pceT". 
(an  extra-judicial  witness,  as  Mr.  Bentham  would  call  admissible, 
him),  to  J.  ;  and  J.  produces  these  remains  on  trial,  where, 
under  the  direction  of  the  court,  they  are  subjected  to  a  chem- 
ical analysis.  This  is  hearsay,  because  E.  is  not  examined  on  trial 
to  prove  the  identity  of  the  remains  with  those  which  J.  pro- 
duces. Or,  after  a  murder,  the  deceased's  clothes  are  taken  off 
by  E.  and  handed  to  J.,  who  brings  them  into  court,  and  testi- 
fies that  they  are  the  clothes  given  to  him  by  E.  as  having  been 
taken  from  the  body  of  the  deceased.  The  articles  thus  pro- 
duced are  hearsa}^,  in  the  wide  sense  of  the  term,  and  should  be 
rejected.^  The  question  of  terms  is  comparatively  uniuiportant. 
With  Mr.  Benthaui  we  may  call  such  evidence  siuiply  "  unorig- 
inal ;  "  with  Mr.  Best,  "  second-hand  ;  "  or  we  may  fall  back,  as  is 
here  done,  upon  the  general  title  of  hearsay,  as  designating  all 
testimony  from  an  unoriginal  source.  It  is  in  this  sense  that  the 
term  "  hearsay  "  is  to  be  used  in  the  following  sections. 

§  172.  The  objections  to  hearsay  testimony,  which  operate  to 

exclude  it  when  offered  on  trial,  and  which  are  there-    _., .   .. 

'  Objections 

fore  to  be  considered  when  we  measure  the  extent  to    to  such 

,  .   ,       ,  ...  .     ,  I  eviilunce. 

which  the  exclusion  is  to  be  carried,  may  be  enumer- 
ated as  follows :  — 

1.  The  depreciation  of  truth  arising  from  its  passin;/  through 
one  or  more  fallible  media.  —  Mr.  Bentham,  who  argues  with  great 
acuteness  against  the  common  law  exclusion  of  such  evidence, 
admits  the  force  of  this  objection.  "  By  every  extra-judicial 
medium  the  evidence  is  removed,  removed  by  one  remove,  from 
that  degree  of  proxiinitv  wliicli  it  W(>ro  desirable  it  sliould  pos- 
sess, and  whicli  in  the  case  of  ordinary  evidtMice  it  docs  possess, 
with  reference  to  the  eye  or  the  ear  of  the  judge."  .  ..."  In 

1  See  'WTiarton,  Crim.  Law,  7th  cd.  §§  715.  822. 

171 


§  172.]  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

the  case  of  hearsay  evidence  (especially  if  the  discourse  runs  into 
length),  it  is  frequently  impossible  for  the  deposing  witness  to 
speak  to  the  very  words ;  and  then  comes  the  uncertainty 
whether,  of  tlie  words  really  spoken,  the  purport  attributed 
to  them  by  the  deposing  witness  be  a  faithful  representation  ; 
whether  and  how  far  the  interpretation  put  upon  them  by  the  de- 
posing witness  is  correct."  ^  Yet  Mr.  Bentham's  criticism  on  this 
objection  has  a  force  which  we  cannot  wholly  disregard.  We  do 
not  consider  this  fallibility  as  fatal,  he  argues,  when  we  report  the 
declarations  of  a  party  on  trial ;  we  permit,  in  such  a  trial  (e.  g.  on 
a  trial  for  murder,  in  which  the  defendant's  intent  is  to  be  proved 
by  his  language),  a  dozen  witnesses  to  report,  accoi'ding  to  their 
own  notions,  what  the  defendant  said  ;  and  the  same  liberty  ex- 
ists in  civil  issues,  in  all  cases  where  extra-judicial  declarations  of 
parties  are  to  be  shown.  The  mere  fact,  therefore,  that  the  lan- 
guage of  one  man,  before  it  reaches  us,  passes  through  the  me- 
dium of  another  man's  perception,  memory,  and  expression,  is,  it 
is  argued,  in  itself  no  absolute  ground  for  exclusion.  Yet  to  this 
criticism  it  may  be  replied,  that  extra-judicial  admissions  of 
parties  cannot  be  invoked  as  similar  to  extra-judicial  statements 
of  third  parties  not  produced  on  trial,  because  the  former,  as  we 
will  have  hereafter  occasion  to  show,  are  not  so  much  evidence, 
as  releases  from  evidence,^  and  are  not  therefore  to  be  regarded 
as  affording  precedents  for  the  treatment  of  that  which  is  strictly 
evidence.  Did  A.  do  a  particular  thing  ?  Ordinarily  B.,  the 
actor  in  the  case  against  A.,  has  to  prove  that  A.  did  the  thing. 
But  A.  says  in  court,  "  I  admit  I  did  it ;"  and  so  far  relieves  B. 
from  the  necessity  of  proving  the  fact.  Or,  we  produce  what  is 
virtually  a  release  executed  by  A.  before  the  trial,  relieving  B. 
from  this  necessity  ;  or  A.'s  intent  is  to  be  proved,  and  a  witness 
is  called  to  prove  that  A.  admitted  his  intent  to  be  that  of  the 
character  charged.  The  witness  then  proves  an  admission  by 
A.  which  relieves,  if  believed,  B.  from  proving  the  fact  of  intent ; 
and  it  makes  no  matter  whether  the  admission  by  A.  in  this  re- 
spect was  intentional  or  unintentional.  A.'s  admission,  so  proved, 
is  neither  "hearsay,"  nor  " unoriginal,"  nor  " second-hand."  Its 
reception  cannot  be  used  as  a  precedent  for  the  reception  of  a 
repetition  by  B.  of  what  D.,  an  extra-judicial  witness,  said. 
1  Rat.  Jud.  Ev,  III.  438,  455.  2  l^ha,,  §  1075. 

172 


CHAP.  IV.]  HEARSAY.  [§  172. 

^  2.  The  abuses  likely  to  arise  from  a  non-discrimination  hy 
juries  between  primary  and  secondary.  —  "  By  the  general  rule 
of  law,  nothing  that  is  said  by  any  person  can  be  used  as  evi- 
dence between  contending   parties,  unless  it  is  delivered  upon 

oath  in  the  presence  of  those  parties Some  inconvenience 

no  doubt  arises  from  such  rigor.  If  material  witnesses  liappen 
to  die  before  the  trial,  the  person  whose  cause  they  would  have 
established  may  fail  in  the  suit.  But  although  all  the  bishops 
on  the  bench  should  be  ready  to  swear  to  what  they  heard  those 
witnesses  declare,  and  add  their  own  implicit  belief  of  the  truth 
of  the  declarations,  the  evidence  would  not  be  received.  Upon 
this  subject,  the  laws  of  other  countries  are  quite  different  ;  tliey 
admit  evidence  of  hearsay  without  scruple.  There  is  not  an 
appeal  from  the  neighboring  kingdom  of  Scotland,  in  which  you 
will  not  find  a  great  deal  of  hearsay  evidence  upon  every  fact 
brought  into  dispute.  But  the  different  rules  which  prevail 
there  and  with  us  seem  to  me  to  have  a  reasonable  foundation 
in  the  different  manner  in  which  justice  is  administered  in  the 
two  countries.  In  Scotland  and  most  of  the  continental  states, 
the  judges  determine  upon  the  facts  in  dispute  as  well  as  upon 
the  law  ;  and  they  think  there  is  no  danger  in  their  listening  to 
evidence  of  hearsay,  because  when  they  come  to  consider  their 
judgment  on  the  merits  of  the  case,  they  can  trust  themselves 
entirely  to  disregard  the  hearsay  evidence,  or  to  give  it  any  little 
weight  which  it  may  seem  to  deserve.  But  in  England,  where 
the  jury  are  the  sole  judges  of  the  fact,  hearsay  evidence  is  prop- 
erly excluded,  because  no  man  can  tell  what  effect  it  miglit  have 
upon  their  minds."  ^  Hence  it  has  been  held  that  wluu-e  the  ob- 
ject of  evidence  is  to  satisfy  the  court  on  matters  which  are  for 
the  court,  and  not  for  a  jury,  hearsay  evidence  may  be  heard, 
even  where  the  court  is  discharging  the  function  of  a  jury.  Thus 
in  order  to  show  that  reasonable  search  has  been  made  for  a  lost 
indenture,  a  witness  may  be  asked  whether  he  has  iiKjuircnl  of 
persons  who  were  likely  to  know  about  it,  and  what  answers 
were  given  to  his  inquiries.'-^ 

3.  ^Such  testimony^  in  its  first  exhibition^  is  irresponsible.  —  A., 
a  witness  not  produced  on  trial,  says  he  saw  B.  do  a  particular 

1  Mansfield,  C.  J.,  4  Camp.  414.  ^  r.    „.    RraintrLC,   1    E.  &  E.  b\  ; 

PowcU's  Evidence,  4 lb  ed.  138. 

173 


§  178.]  THE   LAW   OF   EVIDKNCE.  [BOOK  I. 

thing.  C,  a  witness  produced  on  trial,  says  be  heard  A.  say 
that  he  saw  R.  do  this  thing.  A.  is  really  the  witness,  yet  he  is 
not  responsible  for  what  he  says.  He  is  not  subjected  to  the 
probe  of  a  cross-examination.  He  is  not  indictable  for  perjury. 
No  recourse  can  be  had  to  him  to  make  him,  ordinarily,  liable 
either  civilly  or  criminally  for  his  error.  Yet  the  rule,  that  a 
party  put  on  trial  is  entitled  to  have  his  case  tried  on  the  evi- 
dence of  responsible  witnesses,  is  essential  to  the  fair  determina- 
tion of  the  issue  in  litigation.  In  many  of  our  constitutions  we 
find  one  aspect  of  this  rule  given  in  the  maxim,  that  a  party 
accused  has  a  right  to  meet  the  witnesses  against  him  face  to 
face.  To  dispense  with  these  witnesses,  and  permit  their  testi- 
mony to  be  given  by  those  who  claim  to  have  heard  such  wit- 
nesses speak,  would  be  to  evade  this  important  sanction,  and  to 
put  a  party  on  trial  on  evidence  whose  falsity  he  would  be  pre- 
cluded from  either  detecting  or  punishing. 

§  173.  Hearsay,  however,  in  its  legal  sense,  is  not  confined  to 
.  ^  that  which  is  said.     Men  may  express  themselves  by 

Acts  may  j  l  j 

be  hear-  couduct  as  well  as  by  words  ;  and  to  repeat  what  they 
said  by  words  is  no  more  hearsay  than  to  repeat  what 
they  said  by  conduct.  An  impostor  dresses  himself  as  an  officer 
of  the  army,  and  obtains  credit  on  the  basis  of  his  being  such  an 
officer.  If  so,  his  dress  and  style  are  as  much  a  declaration  on 
his  part  as  would  be  the  words,  "  I  am  an  officer  of  the  army." 
Of  the  convertibility  of  acts  with  words  in  this  relation,  we  have 
an  interesting  illustration  in  an  English  ruling  in  the  exchequer 
chamber,  afterwards  affirmed  in  the  house  of  lords. ^  The  issue 
was  that  of  devisavit  vel  non,  and  it  was  held  that  letters  written 
to  the  testator  by  different  persons  since  deceased,  and  who  had 
been  well  acquainted  with  the  testator,  could  not  be  received  in 
evidence  on  a  question  of  sanity.  The  letters,  it  was  argued, 
were  not  receivable  as  mere  declarations  of  deceased  witnesses, 
or  as  independent  facts.  But,  assuming  that  the  letters  were 
connected  with  any  act  of  the  testator  relating  to  them  by  which 
intelligence  was  indicated,  as,  for  example,  if  he  had  answered 
them,  they  were  receivable.  Parke,  B.,  said  :  "  The  question 
is  whether  the  contents  of  these  letters  are  evidence  of  the  fact 
to  be  proved  upon  the  issue  ;  that  is,  the  actual  existence  of 

1  Wright  V.  Tatham,  7  A.  &  E.  313. 
174 


CHAP.  IV.]  HEARSAY.  [§  174. 

the  qualities  which  the  testator  is  in  those  letters,  by  implica- 
tion, stated  to  possess  ;  and  these  letters  may  be  considered,  in 
this  respect,  to  be  on  the  same  footing  as  if  they  had  contained 
a  direct  positive  statement  that  he  was  competent.  For  this  pur- 
pose they  are  mere  hearsay  evidence,  statements  of  the  writers, 
not  on  oath,  of  the  truth  of  the  matter  in  question,  with  the  ad- 
dition, that  they  have  acted  upon  the  statements  on  the  faith  of 
their  being  true,  by  thus  sending  the  letters  to  the  testator. 
That  the  so  acting  cannot  give  a  sufficient  sanction  for  the  truth 
of  the  statement  is  perfectly  plain,  for  it  is  clear  that  if  the  same 
statement  had  been  made  by  parol,  or  in  writing,  to  a  third  per- 
son, it  would  have  been  insufficient.  Yet  in  both  cases  there  has 
been  an  acting  on  the  belief  of  the  truth,  by  making  tlie  state- 
ment, or  writing  and  sending  a  letter  to  a  third  person  ;  and 
what  difference  can  it  possibly  make  that  this  is  an  acting  of  the 
same  nature  by  writing  and  sending  the  letter  to  tlie  testator?  " 
In  a  later  case,^  which  was  an  action  to  recover  a  sum  of  money 
paid  by  the  plaintiff  for  the  purchase  of  an  estate,  on  the  ground 
that  he  was  a  lunatic,  and  therefore  incompetent  to  contract, 
evidence  was  received  of  liis  conduct  before  and  after  the  trans- 
action, to  show  that  the  lunacy  was  of  such  a  character  as  would 
be  apparent  to  the  defendant  when  dealing  with  him.^  The  rea- 
soning here  was  that  the  defendant,  from  certain  facts,  was  bound 
to  make  certain  inferences  ;  which,  as  is  elsewhere  seen,  is  rele- 
vant on  the  question  of  bona  fides. ^  But  where  acts  of  third  par- 
ties, not  relating  to  the  issue,  are  not  relevant  in  the  sense  just 
mentioned,  they  must  be  excluded  as  hearsay.*  Thus,  on  the 
question  of  seaworthiness,  it  would  be  inadmissible  to  prove  that 
a  deceased  sea-captain,  after  a  thorough  examination  of  the  ves- 
sel, embarked  in  it  with  his  family,  and  that  other  underwriters 
had  paid  on  the  same  policy.^ 

§  174.  Mr.  Bentliani  has  observed  that  to  constitute  hearsay 
testimonv,   it  must  be   separated  by  the   intfrposition    , 

.  .  .  •  r  Inlcrprcta- 

of  some  appreciable  time  from  its  reception  from  the    tion  is  not 
party  from   whom  it    is    obtained.     A.,   a  witness    in 

*  Bcavan  v.  McDonnell,   10  Excli.         ■•  Backhouse  v.  Jones,  G  Hin^.  N.  C. 

184.  Go.     Supra,  §  29;  ami  see  infra,  §  I  7G. 

2  Powell's  Eviclcncc,  4th  cd.  140.             ^  See  Wri^Mit  r.  Tathain,  7  A.  &  K. 

8  Supra,  §  35;  infra,  §  176.  387-8. 

i7r) 


§  175.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


court,  for  instance,  speaks  in  so  low  a  tone  that  what  he  says  has 
to  be  repeated  to  the  jury;  or  a  foreigner,  when  examined,  has 
to  be  interpreted  by  an  interpreter.  In  this  case  the  transmis- 
sion of  the  witness's  evidence  is  instantaneous,  tliough  through 
the  medium  of  another  person,  and  it  is  sometimes  argued  that 
because  such  evidence  is  instantaneous  it  is  not  hearsay.  But 'a 
sounder  reason  for  the  distinction  is,  that  in  cases  of  repetition  or 
interpretation,  the  inaudible  or  foreign  witness  is  examined  in 
court,  and  is  therefore  responsible  ;  whereas  the  extra-judicial 
witness,  whose  utterances  are  reported  by  another,  is  not  exam- 
ined in  court,  and  is  therefore  not  responsible.^  An  illustration 
of  the  same  principle  may  be  found  in  the  fact  that  a  witness 
may  interpret  for  himself,  without  the  intervention  of  an  inter- 
preter.^  We  should  remember,  also,  following  the  distinction 
already  noticed,  that  when  an  interpreter  acts,  out  of  court,  as 
an  agent  for  a  party,  his  statements  are  to  be  regarded  as  the 
statements  of  the  party  whom  he  represents.^  So  we  may  re- 
ceive in  evidence  the  rendering  in  the  vernacular  by  a  witness  of 
a  confession  heard  by  him  in  a  foreign  tongue.^ 

§  175.  Hence  we  may  hold  the  rule  to  be  that  the  extra- judi- 
_    .  cial  statements  of  third  persons  cannot  be  proved  by 

Testimony     ,  ^  r-      i 

of  non-wit-  hearsay,  unless  such  statements  were  part  of  the  7'es 
ordinariij'  gestae,  or  made  by  deceased  persons  in  the  course  of 
when  re-^  business,  or  as  admissions  against  their  own  interest.^ 
a°oth^  ^^  ^^^  ^^^^^  sense  as  hearsay  are  to  be  considered  the  state- 
ments of  a  person  not  a  party  to  the  suit,  as  to  his  mo- 


^  See  Swift  V.  Applebone,  23  Mich. 
252;  People  v.  Ah  Wee,  48  Cal.  236; 
Schearer  v.  Harber,  36  Ind.  536.  In- 
fra, §  407. 

2  Com.  V.  Kepper,  114  Mass.  278. 

^  "  We  have  an  early  case  upon  this 
point,  in  Fabrigaz  v.  Mostyn,  reported 
■  in  20  Howell's  State  Trials,  123,  where 
an  interpreter  had  been  employed  to 
communicate  certain  proposals  and  re- 
ceive the  answer  of  the  other  party, 
and  the  question  was,  whether  the 
words  of  the  interpreter  could  be  given 
in  evidence  by  a  witness,  or  whether 
the  interpreter  himself  ought  to   be 

176 


called,  as  the  witness  neither  under- 
stood the  question  put  to  the  party 
nor  the  answer  made  by  him;  and  it 
was  held  by  Gould,  J.,  that  the  evi- 
dence of  the  witness  was  clearly  ad- 
missible. In  such  case  the  interpreter 
is  the  accredited  agent  of  the  party, 
acting  within  the  scope  of  his  author- 
ity in  the  execution  of  his  agency." 
Dewey,  J.,  Camerhn  v.  Palmer  Co. 
10  Allen,  541. 

*  People  I.'.  Ah  Wee,  48   Cal.  236. 

^  Mima  Queen  v.  Hepburn,  7 
Cranch,  290;  Nudd  v.  Burrows,  91 
U.  S.  (1   Otto)   426  ;  Evans  v.  Het- 


CHAP.  IV.] 


HEARSAY. 


[§  175. 


tives,  when  such  statements  are  no  part  of  the  res  gestae,  but  are 
offered  for  the  purpose  of  proving  the  motive  of  the  act ;  ^  the 
opinion  of  others  as  to  the  wealth  and  status  of  an  individual ;  ^ 
letters  from  third  parties,  though  non-residents;^  information 
derived  from  others  as  to  contemporaneous  historical  events  ;  *  the 
report  of  a  state  fair  committee  as  to  the  value  of  a  particular 
invention ;  ^  recitals  in  deeds  as  against  strangers ;  ^  evidence  of 
the  value  of  domestic  goods  based  on  information  from  particu- 
lar 23ersons  ;  "*  declarations  of  third  parties  that  they  killed  the 


tick,  3  Wash.  C.  C.  409  ;  Lanning  v. 
Case,  4  AVash.  C.  C.  169  ;  Gaines  v. 
Relf,  12  How.  472  ;  Gains  v.  Hasty, 
63  Me.  361  ;  Gordon  o.  Shurtliff,  8 
N.  H.  260  ;  Page  v.  Parker,  40  N.  H. 
4  7  ;  Goddard  v.  Pratt,  16  Pick.  412  ; 
Chapin  v.  Taft,  18  Pick.  379  ;  How- 
land  V.  Crocker,  7  Allen,  153  ;  Wes- 
son V.  Iron  Co.  13  Allen,  95  ;  Brown 
V.  iSIooers,  6  Gray,  451  ;  Young  v. 
Makepeace,  103  Mass.  50  ;  Robinson 
V.  Litchfield,  112  Mass.  28  ;  Brooks 
V.  Acton,  117  Mass.  204;  Treat  v. 
Barber,  7  Conn.  274  ;  School  Dist.  v. 
Blakeslee,  13  Conn.  227  ;  Salmon  v. 
Orser,  5  Duer,  511  ;  Luby  v.  R.  R. 
17  N.  Y.  131  ;  McKinnon  i-.  Bliss, 
21  N.  Y.  206;  Faulkner  v.  Whitaker, 
15  N.  J.  L.  438  ;  McCormicki;.  Robb, 
24  Penn.  St.  44  ;  Eureka  Ins.  Co.  v. 
Robinson,  56  Penn.  St.  256  ;  Lancas- 
ter Co.  Bk.  V.  Moore,  78  Penn.  St. 
407  ;  Atwell  v.  Miller,  11  Md.  348; 
Williamson  v.  Dillon,  1  liar.  &  G. 
444  ;  Hosenstock  v.  Tormey,.  32  Md. 
169;  JMcKinney  v.  McConnel,  1  Bibb, 
239  ;  Detroit  R.  R.  v.  Van  Steinburg, 
17  Mich.  99  ;  Atwood  v.  Cornwall,  28 
Mich.  336  ;  Keegan  v.  Carpenter,  47 
Ind.  597;  Jones  v.  Doe,  2  111.  276; 
Aikin  v.  Hodge,  61  111.436;  Pollard 
V.  People,  69  111,  148  ;  Morse  v.  Thor- 
fcll,  78  111.  600 ;  Rowland  v.  Rowland, 
2  Ired.  L.  61  ;  State  v.  Ilaynes,  71 
N.  C.  79  ;  Berry  v.  Osborne,  15  Ga. 
194  ;  Chastain  v.  Robinson,  30  Ga. 
55  ;  Yarborough  v.  Moss,  9  Ala.  382  ; 

VOL.   I.  12 


Scales  V.  Desha,  16  Ala.  308  ;  Harts- 
horn V.  Williams,  31  Ala.  149  ;  Wells 
V.  Shipp,  1  Miss.  353;  Sherwood  v. 
Houston,  41  Miss.  59  ;  Kean  v.  New- 
ell, 2  Mo.  9  ;  Howell  v.  Howell,  37 
Mo.  124;  Bain  t'.  Clark,  39  Mo.  252  ; 
Atwell  V.  Lynch,  39  Mo.  519;  En- 
twhistle  V.  Feighner,  60  Mo.  214  ; 
Flynn  v.  Ins.  Co.  17  La.  An.  135; 
Davis  v.  Slate,  37  Tex.  277;  Born- 
heimer  v.  Baldwin,  42  Cal.  27. 

^  North  Stonington  v.  Stonington, 
31  Conn.  412.     See  supra,  §  72. 

^  Caswell  V.  Howard,  16  Pick.  567. 
See  Kost  v.  Bender,  25  Mich.  515. 

8  U.  S.  V.  Barker,  4  Wash.  C  C. 
464  ;  Longenecker  v.  Hyde,  6  Binn. 
1  ;  Rosenstock  v.  Tormey,  32  Md. 
169  ;  WinJow  v.  Newlan,  45  IlL 
145;  Brayley  r.  Ross,  33  Iowa,  505  ; 
Bank  of  Ky.  v.  Todd,  1  A.  K.  Marsh. 
157. 

*  Swinnerton  v.  Ins.  Co.  9  Bosw. 
361 ;  Milbank  v.  Dennistoun,  10  Bosw. 
382. 

6  Gatling  v.  Newell,  9  Ind.  572. 

^  Spaulding  r.  Knight,  116  Mass. 
148;  Rose  v.  Taunton,  1 1'J  Mass.  99; 
Hardenburgh  r.  Lakin,  4  7  N.  Y.  Ill; 
Yahoola  Co.  r.  Irby,  40  Ga.  4  79. 
See  infra,  §§  1034-1042. 

7  Green  v.  Caulk,  16  M.l.  556  ; 
Wolf  I'.  Ins.  Co.  20  La.  Ann.  583; 
though  see  infrji,  §§  253,  44  7-450; 
Alfonso  I'.  U.  S.  2  Story,  421,  where 
invoices  of  shipuu-nts  of  sugar,  in 
July   and   August,  were  received   to 

177 


§  175.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


deceased;^  declarations  of  relatives  (living  at  the  trial),  as  to  the 
mental  condition  of  a  person  whose  sanity  is  disputed  ;  ^  opinion 
of  a  neighborhood  as  to  such  sanity ;  ^  even  letters  by  a  deceased 
person  to  a  party  whose  sanity  is  in  question,  unless  connected 
with  evidence  showing  that  he  acted  upon  such  letters.*  It 
is  no  reason  for  receiving  such  statements  that  the  person  mak- 
ing them  is  dead  ^  (unless  under  the  limitations  which  will  be 
hereafter  designated),  or  that  he  was  called  as  a  witness,  and 


show  market  value  of  sugar ;  and 
see,  also,  Fennerstein's  Champagne, 
3  Wall.  145;  and  U.  S.  v.  Cham- 
pagne, 1  Ben.  341,  admitting  letters 
from  third  parties  to  prove  market 
prices. 

1  State  V.  Duncan,  6  Ired.  L.  236 ; 
Smith  V.  State,  9  Ala.  990, 

2  Heald  v.  Thing,  45  Me.  392. 

8  Lancaster  Co.  Bk.  v.  Moore,  78 
Penns.  St.  407 ;  qualifying  Rogers  v. 
Walker,  6  Barr,  375. 

*  Wright  V.  Tatham,  cited  supra, 
§173,  See  7  A.  &E.  391,  per  Parke, 
B. ;  4  Bing,  N.  C.  545,  per  Ibid.  ; 
Ibid.  531,  per  Alderson,  B.  ;  Ibid. 
502,  504,  per  Coleridge,  J. ;  Ibid,  525, 
626,  per  Patteson,  J.  The  letters  re- 
jected in  this  case  were  three  :  1st. 
A  letter  of  gratitude  to  the  testator 
from  a  clergyman  to  whom  he  had 
formerly  given  preferment  ;  2d.  A  let- 
ter of  friendship  from  a  relative,  with 
whom  the  testator  was  proved  to  have 
corresponded  three  years  afterwards  ; 
3d.  A  letter  advising  the  testator  to 
diredt  his  attorney  to  take  steps  in 
a  transaction  with  a  certain  parish. 
This  letter  was  indorsed  by  the  attor- 
ney, who  was  long  since  deceased. 
Three  of  the  judges  considered  that  all 
the  letters  were  admissible,  six  thought 
that  the  last  was.  The  remaining 
judges,  including  Lords  Brougham, 
Lyndhurst,  and  Cottenham,  held  that 
all  the  letters  were  alike  inadmissible. 
••Had  the  testator,"  adds  ]\Ir.  Tay- 
178 


lor,  in  commenting  on  this  case,  "  in- 
dorsed these  letters  himself,  or  could 
any  direct  and  positive  evidence  have 
been  given  to  show  that  he  had  — 
whether  by  act,  speech,  or  writing  — 
manifested  a  knowledge  of  their  con- 
tents, it  is  clear  that  the  letters  could 
not  have  been  rejected,  or  in  any  way 
withdrawn  from  the  consideration  of 
the  jury  ;  for  although  they  would 
then  have  been  admitted  solely  on  the 
technical  ground  that  they  explained 
and  illustrated  his  conduct,  no  rule  of 
law  could  have  prevented  them  from 
operating  with  full  effect  upon  the 
minds  of  the  jury,  as  showing  the  un- 
biased opinions  of  the  winters,  and 
in  what  manner  the  testator  had  been 
treated  by  them."  7  A.  &  E,  325, 
per  Ld.  Denman;  4  Bing,  N.  C,  500, 
per  Coleridge,  J.;  Ibid.  530,  per  Al- 
derson, B.  ;  Ibid.  510,  per  Williams, 
J.  ;  Ibid.  56  7,  per  Tindal,  C.  J.  ; 
Taylor's  Ev.  §  513. 

In  the  ecclesiastical  courts,  where, 
as  there  is  no  jury,  the  distinction 
betweefi  primary  and  secondary  evi- 
dence in  this  respect  is  less  carefully 
maintained,  such  evidence  is  received. 
Morgan  i\  Boys,  per  Sir  H.  Jenner, 
cited  7  A.  &  E.  33  7;  Handley  v. 
Jones,  cited  Ibid.  ;  Waters  v.  How- 
lett,  per  Sir  J.  Nicholl,  cited  1  A. 
&  E.  8  ;  Wheeler  v.  Alderson,  3 
Hagg.  Ec.  R.  574,  609.  See  supra, 
§172. 

6  Crump  V.  Starke,  23  Ark.  131. 


CHAP.  TV.]  HEARSAY.  [§  176. 

being  suddenly  taken  sick,  was  unable  to  attend  the  trial ;  ^  or 
that  he  is  legally  incompetent  as  a  witness.^ 

§  176.  What  has  been  said  as  to  the  declarations  of  third  par- 
ties applies  equally  to  adjudications  between  strangers,  g^  ^f  fj_ 
We    shall  hereafter  have  copious   illustrations  of  this   1"^  'J'^'*  '^ 

^  _  to  stran- 

principle  when  we  consider  the  effect  of  judgments.^  gers. 
With  at  least  equal  force  does  the  rule  apply  to  non-judicial  pub- 
lic acts.^  "  A  certificate  of  naturalization  issues  from  a  court  of 
record  when  there  has  been  the  proper  proof  made  of  a  residence 
of  five  years,  and  that  the  applicant  is  of  the  age  of  twenty-one 
years,  and  is  of  good  moral  character.  This  certificate  is,  against 
all  the  world,  a  judgment  of  citizenship,  from  which  may  follow 
the  right  to  vote  and  hold  property.  It  is  conclusive  as  such  ; 
but  it  cannot,  in  a  distinct  proceeding,  be  introduced  as  evidence 
of  the  residence  or  age  at  any  particular  time  or  place,  or  of  the 
good  character  of  the  applicant.^  The  certificate  of  steamboat 
inspectors,  under  the  Act  of  Congress  of  1852,  is  evidence  that 
the  vessel  was  inspected  by  its  proper  officer  ;  but  it  is  held  that 
it  is  not  evidence  of  the  facts  therein  recited,  when  drawn  in 
question  by  a  stranger,  although  the  officer  was  required  by  law 
to  make  a  return  of  such  facts.*^  So  it  has  been  held,  that  where 
a  sheriff  sells  real  estate,  giving  to  the  purchaser  a  certificate 
thereof,  although  there  can  lawfully  be  no  sale  unless  there  be  a 
previous  judgment,  and  although  the  sale  is  based  upon  and  iis- 
sumes  such  judgment,  and  although  the  law  requires  the  sheriff 
to  give  such  certificate,  the  recital  by  the  sheriff  of  such  judg- 
ment furnishes  no  evidence  thereof.  It  must  be  proved  indepen- 
dently of  the  certificate."  ^ 

Even  the  fact  that  the  declarations  of  a  person  were  against 
his  interest  does  not  render  them  evidence,  if  he  be  living  and 
could  be  called  as  a  witness.^     Nor  does  the  fact  that  hearsay 

1  Gaithcr  v.  Martin,  3  Md.  14G.  «  Erickson  v.  Smith,  2  Abb.  Ct.  of 

2  Churchill  v.    Smith,   16  Vt.   5G0  ;  App.  (N.  Y.)  G4  ;  38  How.  Tr.  454. 
Nettles  V.  Harrison,  2  McCord,  230  ;         ^  Mutual   Benefit  Life  Ins.   Co.   r. 
Smith  V.   State,  41   Tex.  352  (a  case  Tisdalo,  91  U.  S.  Kep.  (1  Otto)  245. 
of  an  infant  too  young  to  be  sworn).  Hunt,  J.,  citing  Anderson  i'.  Janice, 

8  Infra,  §  7C0.  4  Rob.  Sup.  Ct.  35. 

*  Infra,  §  923;  supra,  §  173.  *  Fitch   v.    Chapman,   10  Conn.  8  ; 

^  Campbell    r.  Gordon,  6   Cr.  176  ;  Cordon  v.  Bowers,  16   Penn.  St.  226  ; 

SUvrk  V.   Chesapeake  Ins.   Co.  7  Cr.  ^Macon   11.  K.   v.  Davis,  21   CJa.  173  ; 

420.  Coble  V.  McDaniel,  33  Mo.  363. 

179 


§  177.]  THE   LAW    OF   EVIDENCE.  [BOOK  I. 

evidence  is  reported  by  a  party  to  the  suit  make  it  evidence,  if  it 
be  reported  merely  as  hearsay.^ 

II.   EXCEPTION  AS  TO  WITNESS  ON  FORMER  TRIAL. 

§  177.  Certain  marked  exceptions,  however,  exist  to  this  rule. 

Among  these  the  following  is  the  first  that  may  be  enu- 

of  deceased    merated.    What  a  deceased  witness  testified  to  on  a  for- 

former"  °"     ""^^i"  trial  between  the  same  parties  may  be  testified  to, 

*'"'.'^'.?f"       and  mav  be  proved  bv,  witnesses  who  heard  the  testi- 

missible.  .  . 

mouy  of  the  witness  ;  nor  is  such  oral  evidence  excluded 
by  the  fact  that  the  original  testimony  was  reduced  to  writing. 
The  admission  of  such  evidence  is  based  on  the  fact  that  the 
party  against  whom  the  evidence  is  offered,  having  had  the 
power  to  cross-examine  on  the  former  trial,  and  the  parties  and 
issue  being  the  same,  the  second  suit  is  virtually  a  continuation 
of  the  first.^  The  general  rule  is  thus  given  by  Mansfield,  C.  J. : 
"  What  a  witness,  since  dead,  has  sworn  upon  a  trial  between 
the  same  parties,  may  be  given  in  evidence,  either  from  the 
judge's  notes,  or  from  notes  that  have  been  taken  by  any  other 
person  who  will  swear  to  their  accuracy  ;  or  the  former  evidence 
may  be  proved  by  any  person  who  will  swear  from  his  memory 

1  Stephens  v.  Vroman,  16  N.  Y.  Jackson  v.  Lamson,  15  Johns.  R.  539; 
381.  The  minutes  of  a  justice  of  the  Wilbur  v.  Selden,  6  Cow.  162;  Os- 
peace,  of  testimony  taken  at  a  trial  born  v.  Bell,  5  Den.  70;  Hocker  v. 
before  him,  are  not  admissible  (ex-  Jamison,  2  Watts  &  S.  438;  Jones  u. 
cept  by  stipulation)  at  the  trial  of  the  Wood,  16  Penn.  St.  25;  Bowie  v. 
same  cause  on  appeal  in  the  circuit  O'Neale,  5  Har.  &  J.  226 ;  Letcher  v. 
court,  either  as  evidence  of  the  facts  Norton,  4  Scam.  57.0;  Cook  v.  Stout, 
at  issue,  or  to  impeach  or  sustain  the  47  111.  530;  Hutchings  v.  Corgan,  59 
credibility  of  a  witness  by  showing  111.  70;  O'Brian  v.  Com.  6  Bush,  563; 
what  he  testified  before  the  justice.  Harper  v.  Burrow,  6  Ired.  L.  30; 
Zitske  V.  Goldberg,  38  Wise.  217.  Jackson  v.  Jackson,  47  Ga.  97;   Clea- 

2  Doncaster  v.  Day,  3  Taunt.  262;  land  v.  Huey,  18  Ala.  343;  State  i'. 
Lawrence  v.  Maule,  4  Drew,  472;  R.  Cook,  23  La.  447;  Jaccard  v.  Ander- 
V.  Joliffe,  4  T.  R.  290;  Wright  v.  son,  37  Mo.  91  ;  Coughlin  y.  Haeuss- 
Tatham,  1  A.  &  E.  3;  U.  S.  v.  White,  ler,  50  Mo.  126;  Poorman  v.  Miller, 
5  Cranch  C.  C.  457;  U.  S.  v.  Ma-  44  Cal.  269;  People  i;.  Devine,  46  Cal. 
comb,  5  McLean,  287;  Phil.  R.  R.  45.  That  the  deposition  of  a  party 
V.  Howard,  13  How.  307  ;  W^atson  v.  may  be  so  used,  see  Collins  v.  Smith, 
Lisbon,  14  M^.  201;  State  v.  Hooker,  78  Penn.  St.  423.  Infra,  §  477.  And 
17  Vt.  658;  Mathewson  v.  Sargeant,  so  of  the  notes  of  his  testimony.  Ev- 
36  Vt.  142;  Earl  v.  Tupper,  45  Vt.  ans  r.  Reed,  78  Penn.  St.  415;  Pratt 
275;  Lane  v.  Brainerd,  30  Conn.  565;  v.  Patterson,  3  Weekly  Notes,  161. 

180 


CHAP.  IV.] 


TESTIMONY   OF  DECEASED  WITNESS. 


[§  I'^T. 


to  its  having  been  given."  ^  Wherever  a  judgment  in  one  case 
would  be  evidence  in  the  other  case,  there  evidence  of  a  deceased 
witness  in  one  case  may  be  reproduced  in  the  other  case,  the  wit- 
ness having  been  open  to  cross-examination.  Mere  formal  varia- 
tions of  suit  will  not  work  an  exclusion.^  The  successors  and 
assignees  of  a  party  stand  in  the  same  position  as  the  party  him- 
self.^ What  a  deceased  witness  swore  to  at  the  preliminary 
hearing  before  the  committing  magistrate  is  evidence  at  the  trial 
in  chief ;  *  what  a  deceased  witness  swore  to  on  a  criminal  trial 
is  evidence  on  a  second  trial  for  the  same  offence,  or  an  offence 
substantially  the  same.^  What  a  deceased  witness  swore  be- 
fore arbitrators  in  a  civil  issue  may  thus  be  reproduced  on  trial 
of  the  same  case  in  court :  ^  what  a  deceased  witness  swore  on  a 


^  IMavor  of  Doncaster  v.  Day,  3 
Taunt.  202  ;  Powell's  Evidence,  4tli 
ed.  217. 

"  It.   appears   that  the   depositions 
could   be  read   during  the  lifetime  of 
the  witnesses,  on  the  authority  of  the 
City  of  London  v.  Perkins,  3   Bro.  P. 
C,  ed.  Toml.  G02,  which  was  a  case 
on  appeal  from  the  exchequer  to  the 
house  of  lords.     Knijht  Bruce,  V.  C, 
in   Bla2;rave  v.  Blagrave,  1    De  G.  & 
S.    252,   expressed    an    opinion    that 
when  the  point  was  substantially  the 
same,  it  woidd  be  necessary  to  follow 
that  case;  but  in  the  last  mentioned 
case  he  refused  to  allow  the  deposi- 
tions of  witnesses  taken  in  a  suit  by  a 
tenant  for   life  in  remainder  under  a 
will,  to  be  used  in   a  suit  by  a  tenant 
in  tail  in   remainder  under  the  same 
will,  without  proof  of  the  death  or  ina- 
bility to    be   examined    of   such  wit- 
nesses, althounrh  both  suits  were  in- 
stituted  for  tbe  preservation   of   the 
settled  property.     But  in  a   suit  by  a 
legatee  under  a  will  against  the  execu- 
tor the  depositions  in  a  previous   suit 
against  the  same  executor  by  another 
legatee  have  lieen  allowed  to  be  read. 
Coke   V.  Fountain,   1    Vern.    413;  cf. 
Nevil    V.  Johnson,  2   Vern.   447,  the 
second  suit  being  in  pari  materia  with 


the    first."     Powell's   Evidence,    4th 
ed.  223. 

2  Wright  V  Tatham,  1  A.  &  E.  3. 
See  infra,  §  7G0. 

8  Doe  I'.  Foster,  1  A.  &  E.  791. 
Infra,  §  760. 

*  R.  V.  Edmonds,  6  C.  &  P.  164; 
State  V.  Hooker,  17  Vt.  658;  Davis 
I'.  State,  17  Vt.  658;  thouah  see  con- 
tra, State  V.  Campbell,  1  Rich.  (S.  C.) 
124. 

5  Whart.  Cr.  L.  7th  ed.  §  G57;  R. 
t'.  JolifTe,  4  T.  R.  290;  R.  r.  Smith,  R. 
&  R.  339;  R.  v.  Lee,  4  F.  &  F.  63; 
R.  V.  Dilmore,  6  Cox,  52;  R.  v.  Wil- 
liams, 12  Cox,  101;  U.  S.  V.  Macomb, 
5  McLean,  287;  U.  S.  v.  White,  5 
Cranch,  457;  U.  S.  v.  Wood,  3  Wa^h. 
C.  C.  440;  Brown  v.  Com.  73  Penn. 
St.  321  ;  Summons  r.  State,  5  Oh. 
St.  325;  Barnctt  v.  People,  51  111. 
325  ;  State  v.  MeO'Blcnis,  2t  Mo. 
402;  O'Brian  v.  Com.  G  Hub,  563; 
Kendriek  v.  State,  10  IIum|)h.  4  79; 
People  V.  Diaz,  6  Cal.  24S;  State  t». 
Atkins,  1  Overt.  229  ;  though  see  con- 
tra, Finn  v.  Com.  5  Ran<l.  701 ;  U.  S. 
V.  Sterland,  3  Quart.  L.  J.  244;  6 
Pitts.  L.  J.  50;  Brogy  v.  Com.  10  Grat. 
722. 

«  Bailey  v.  Woods,    17   X.  II.  365; 
Mc Adams  v.  Slilweli,  13  Penn.  St.  90; 

181    ■ 


§  177.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

criminal  trial  may  be  used  on  an  action  for  damages  for  the  same 
offence.^  It  has  been  even  held  that  on  an  action  for  a  malicious 
prosecution  it  is  admissible  to  prove  what  a  deceased  witness 
swore  to  in  the  prosecution  claimed  to  have  been  malicious.^ 
Where,  however,  the  parties  in  interest,  in  two  civil  suits,  are 
essentially  different,  though  the  subject  matter  is  the  same,  the 
evidence  is  not  receivable.^  If  there  is  a  merely  technical  varia- 
tion of  parties,  this  will  not  exclude  the  testimony.*  It  is  other- 
wise, however,  if  there  be  a  substantial  difference  between  the 
parties.^  Unless  the  issues  on  the  two  suits  are  substantially  the 
same,  the  evidence  of  the  witness  in  the  first  suit  cannot  be  re- 
produced.*' If  the  evidence  was  coram  non  judlce,  or  the  witness 
was  not  sworn,"  or  cross-examination  was  precluded  or  restricted,^ 
the  ground  for  admissibility  falls  away.  It  is  not,  however,  nec- 
essary that  there  should  be  an  actual  cross-examination,  provided 
there  be  liberty  to  cross-examine.^  But  though  a  party  has  cross- 
examined  the  testimony  of  a  witness  on  a  former  trial,  the  tes- 
timony of  the  witness,  if  deceased,  cannot  be  adduced  against 
him,  unless  the  opposite  party  be  the  same  as  in  the  former  suit, 
or  a  successor  or  representative  of  the  same.^^  As  the  testimony 
Death  may  taken  in  a  former  trial  cannot  be  read  if  the  witness  is 
be  pre-  obtaiuable,^^  the  question  arises,  what  proof  is  requisite 
from  lapse    to  establish  the  fact  that  the  witness  cannot  be  obtained. 

of  time.  ,^,  .  .  .  I'll  c 

ibis  question  is  generally  presented  in  the  shape  oi 
alleged  death ;  and  on  this  topic  it  is  enough  to  say  that  death 


though  see  Jessup  v.  Cook,  1  Halst.  ''  See  R.  v.  Griswell,  3  T.  R.  721. 

(N.  J.)  434.  8  Fitzgerald  v.  Fitzgerald,  3  Sw.  & 

1  Gavan  y.  Ellsworth,  45  Ga.  283.  Tr.    397;    Steinkeller  i-.    Newton,    1 

2  Charlesworth  v.  Tinker,  18  Wise.  Scott  N.  R.  148 ;   5.   C.   9   C.  &  P. 
633.  313;   R.    v.  Ledbetter,  3   C.   &  Kir. 

8  Norris  v.  Monen,  3  Watts,  465.  108. 

*  Phil.  R.  R.  t'.  Howard,    13  How.  9  Cazenove  y.  Vaughan,  1  M.  &  Sel. 

307.  4;  McCombie  v.  Anton,  6  M.  &  Gr. 

Mnfra,  §  760.    See  Melvin  u.  Whit-  27. 

ing,  7  Pick.  79.  lo  Doe   v.   Derby,    1    A.  &  E.  783; 

6  Infra,  §   782;   Orr  v.  Hadley,  36  Morgan  v.  Nicholf,  L.  R.  2  C.  P.  117; 

N.  H.  5  75;  Melvin  v.  Whiting,  7  Pick.  Atkins  v.  Humphreys,  1   M.  &  Rob. 

79;    Perine  v.  Swaim,   2  Johns.   Ch.  523. 

475;  Sample  v.    Coulson,   9  Watts  &  "  See  Chess   v.  Chess,  17  S.   &   R. 

S.  62;  McMorine  v.  Storey,  4  Dev.  &  409. 
Bat.  189. 

182 


CHAP.  IV.]       TESTIMONY   OF   WITNESS   AT   FORMER   TRIAL.  [§  178. 


is  to  be  inferred  from  the  circumstances  of  each  particular  case, 
irrespective  of  any  general  presumption  of  law.^ 

§  178.  Proof  of  mere  disappearance  of  the  original  witness  is 
not  by  itself  enough  to  admit  such  testimony  if  by  due   a    »    > 
diligence  the  witness's  attendance  could  have  been  se-   nesses  out 
cured,^  though  it  is  sufficient  to  show  that  the  original   tinn  or 
witness  is  absent,  and  a  non-resident  in  the  state  where   come  in- 
the  trial  is  held,  being  out  of  the  jurisdiction  of  the   *^°"^P^^^'^  • 
court.^    It  has  even  been  held  enough  if  the  witness,  though  tech- 
nically within  the  jurisdiction,  cannot,  without  extraordinary  in- 
convenience, be  brought  to  the  trial.*    The  testimony  of  a  former 
witness,  corruptly  kept  from  court  by  the  party  against  whom  he 
is  called,  it  has  been  held  may  be  in  like  manner  reproduced.^ 


1  See  this  discussed,  infra,  §  1294. 
See,  also,  Benson  v.  Olive,  2  Str. 
920. 

2  U.  S.  V.  Macomb,  5  McLean,  287; 
State  i;.  Staples,  47  N.  H.  113;  Powell 
V.  Waters,  1 7  Johns.  R.  1  7G ;  Wilbur  v. 
Selden,  6  Cow.  162  ;  Crary  v.  Sprague, 
12  Wend."  41;  Berney  v.  Mitchell,  34 
N.  J.  L.  337;  Brojry  v.  Com.  10  Grat. 
722  ;  Summons  v.  State,  5  Oh.  St.  325; 
Dupree  v.  State,  33  Ala.  380;  Hobson 
V.  Harper,  2  Blackf.  309;  Bergen  v. 
People,  17  111.  426;  Gerhauser  v.  Ins. 
Co.  7  Nev,  174. 

8  Fry  V.  Wood,  1  Atk.  445;  Car- 
penter V.  Groff,  5  S.  &  R.  1G2;  Cavan- 
hovan  v.  Hart,  21  Penn.  St.  495  ; 
Wright  V.  Cumsty,  41  Penn.  St.  102; 
Dye  V.  Com.  3  Bush,  3;  AVilder  v.  St. 
Paul,  12  Minn.  192. 

*  Fonsick  v.  Egar,  6  Esp.  92;  Ward 
V.  Wells,  1  Taunt.  461  ;  Minis  y.  Stur- 
tevant,  36  Ala.  636.  See  Varicas  v. 
French,  2  C.  &  Kir.  1008;  Carruthers 
V.  Graham,  1  C.  &  Marsh.  5. 

8  Morley's  case,  6  How.  St.  Tr. 
770;  R.  V.  Scaife,  2  Den.  C.  C.  281; 
17  Q.  B.  238 ;  R.  v.  Guttridge,  9  C.  & 
P.  4  73;  Williams  v.  State,  19  Ga.  402. 
Infra,  §  1265.  • 

In  Blagrave  v.  Blagrave,  1  De  Gex 
&   Sm.  252,  a  person   was  tenant  for 


life  of  certain  real  and  personal  estate, 
and  two  suits  were  instituted  against 
him  in  respect  of  alleged  mismanage- 
ment of  the  property,  the  one  being 
commenced  by  the  tenant  ior  life  in 
remainder,  and  referring  only  to  the 
real  estate,  the  other  being  commenced  • 
by  the  first  tenant  in  tail,  and  embrac- 
ing both  the  real  and  the  personal 
estate.  Under  these  circumstances, 
it  was  proposed,  on  the  authority  of 
Nevil  V.  Johnson,  2  Vern.  247;  Bar- 
ton V.  Palmes,  Prcc.  in  Ch.  233; 
Byrne  v.  Frere,  2  Moll.  157,  and, 
particularly,  the  City  of  Loudon  v. 
Perkins,  3  Br.  P.  C.  602,  to  road,  as 
against  the  defendant  in  the  second 
suit,  the  depositions  that  had  been 
taken  against  him  in  the  first,  with- 
out any  proof  that  the  witnes.'ies  were 
dead,  or  otherwise  incapable  of  bt-ing 
examined.  Vice-Chancelior  Knight 
Bruce,  however,  properly  held  that 
this  course  could  not  be  ptn-sued ; 
and  his  decision  would  not  have  de- 
served any  notice  had  it  nut  been  that, 
while  pronouncing  his  judgment,  ho 
appeared  to  recognize  the  case  of  the 
City  of  London  »'.  Perkins  as  an  au- 
thority, to  a  certain  extent,  for  the 
doctrine  propounded  by  the  plaintiff's 
counsel.      The   real    facts,    so   argues 

183 


§  1T8.] 


THE   LAW    OF   EVIDENCE. 


[book  I. 


So,  tlie  former  testimony  of  a  witness  who  has  intermediately 
become  incompetent  may  be  proved  on  a  second  trial. ^ 

Answers  to  inquiries  made  on  searching  for  the  witness  will 
be  reject(;d  as  hearsay,  if  tendered  in  proof  of  the  fact  that  the 
witness  is  abroad  ;  ^  but  where  the  question  is  simply  whether  a 
diligent  and  unsuccessful  search  has  been  made  for  the  witness, 
the  better  opinion  is,  that  the  answers  should  be  received.'^  In 
order  to  show  that  inquiries  have  been  duly  made  at  the  house 
of  the  witness,  his  declarations  as  to  where  he  lived  cannot  be 
received,^  neither  will  his  statement  in  the  deposition  itself  that 
he  is  about  to  go  abroad,  render  it  unnecessary  to  prove  that  he 
has  put  his  purpose  in  execution.^ 


Mr.  Taylor,  in  discussing  this  case 
(Ev.  §  440),  were  these  :  The  city 
of  London  having  filed  a  bill  against 
Messrs.  Perkins  to  recover  certain 
tonnage  dues  under  an  alleged  cus- 
tom, claimed  to  read,  in  evidence  of 
reputation  with  respect  to  the  cus- 
tom, certain  depositions  which  had 
been  taken  by  them  in  two  former 
suits  for  tlie  recovery  of  the  same  spe- 
cies of  tonnage  against  two  other  de- 
fendants. The  court  of  exchequer 
rejected  this  proof,  on  the  ground  that 
the  deaths  of  the  witnesses  were  not 
shown  by  "  the  depositions  taken  in 
the  catise  ;  "  and  they  refused  to  allow 
the  plaintiffs  to  prove  by  viva  voce  tes- 
timony or  by  affidavit  that  the  wit- 
nesses were  in  fact  dead.  The  plain- 
tiffs appealed,  and  prayed,  among  other 
things,  that  the  order  of  the  court  be- 
low should  be  reversed,  and  that  thi^y 
miglit  be  at  liberty  to  read  the  deposi- 
tions; whereupon  the  house  of  lords, 
without  granting  or  alluding  to  the  last 
paragraph  of  the  prayer,  gave  judg- 
ment that  the  order  be  reversed.  See, 
and  compare,  3  Br.  P.  C.  602,  and  24 
Lords  J.  448,  under  date  23d  Jan. 
1734.  See,  also,  Carrington  v.  Cor- 
nock,  2  Sim.  5G7.  It  is  obvious,  there- 
fore, that  this  case  does  not  decide 
that  deposiiions  can  in  any  event  be 

184 


read  in  evidence  where  the  witnesses 
are  themselves  capable  of  being  called. 
Neither  can  such  a  doctrine  be  sup- 
ported by  any  of  the  three  other  cases 
cited  by  the  plaintiff's  counsel  in  Bla- 
grave  o.  Blagrave,  1  De  Gt-x  &  Sm. 
252.  In  Byrne  v.  Frere,  2  Moll.  15  7, 
it  is  clear  that  the  witnesses  were  dead ; 
and  there  is  nothing  whatever  to  show 
that  they  were  alive  either  in  Nevil  v. 
Johnson,  2  Vern.  447,  or  in  Barton  v. 
Palmes,  Prec.  in  Ch.  233.  These  last 
two  cases  were  decided  at  the  com- 
mencement of  the  last  century  by  a 
judge  of  no  very  exalted  reputation, 
Sir  Nathan  Wright,  and  are,  moreover, 
so  wretchedly  reported  as  to  be  utterly 
valueless  as  expositions  of  the  law. 

1  Jones  V.  Jones,  1  Cox  Ch.  184; 
Andrews  v.  Palmer,  1  Ves.  &  B.  22; 
Reed  V.  Reed,  78  Penn.  St.  415;  Spey- 
erer  v.  Bennett,  79  Penn.  St.  445; 
Pratt  V.  Patterson,  3  Weekly  Notes, 
IGl.  See  Gresley  on  Ev.  366,  citing 
Gosse  V.  Tracey,  1  P.  Wnis.  287  ; 
Cope  r.  Parry,  2  J.  &  W.  538. 

2  Robinson  v.  Markis,  2  M.  &  Rob. 
375. 

8  Wyatt  I'.  Bateman,  7  C.  &  P.  586. 
Austin  V.  Rumsey,   2   C.  &  Kir.  736. 

4  Doe  ^  Powell,  7  C.  &  P.  617. 

5  Proctor  V.  Lainson,  7  C.  &  P.  631 ; 
Taylor's  Ev.  §  443. 


CHAP.  IV.]  TESTIMONY    OF   SICK   OR   INSANE   WITNESS.  [§  179. 


sane  or 
sick  wit- 
less. 


§  179.  Sickness,  as  has  been  incidental!}'  seen,  falls  under  the 
same  rule.  Thus  in  an  old  case,  where  a  witness,  on  his  so  of  in- 
journey  to  the  place  of  trial,  was  taken  so  ill  as  to  be 
unable  to  proceed,  we  find  it  recorded  that  his  deposi-  "^ 
tion  was  allowed  to  be  read ;  ^  and  the  same  liberty  would  apply 
to  depositions  taken  in  a  prior  case  between  the  same  parties. 
At  the  same  time  it  should  appear  that  the  sickness  is  of  a  char- 
acter imposing  permanent  inability,  as  otherwise,  to  adopt  a 
criticism  of  Lord  Ellenborough,  there  would  be  very  sudden  in- 
dispositions and  recoveries.^  The  rule  laid  down  by  Lord  Ellen- 
borough,  that  where  a  witness  is  taken  ill,  the  party  requiring 
his  testimony'  should  move  to  put  off  the  trial,  is  less  open  to  ob- 
jection and  abuse. ^  It  is,  of  course,  in  such  cases,  a  conflict  of 
inconveniences  ;  but  in  criminal  trials,  where  the  objection  to 
secondary  evidence  of  this  class  is  peculiarly  strong,  it  has  been 
ruled  that  the  deposition  of  a  woman,  who  was  so  near  her  con- 
finement as  to  be  unable  to  attend  a  trial,  could  not  at  common 
law  be  received.*  Jt  is  otherwise,  however,  when  from  the  nature 
of  the  illness  or  other  infirmity,  no  reasonable  hope  remains  that 
the  witness  will  be  able  to  appear  in  court  on  any  future  oc- 
casion.^ Mental  incapacity,  from  whatever  cause,  is  a  sufficient 
inducement.^     It  has  been  said  that  if  the  insanity  is  temporary, 

and  quite  uiiiihlc   to  attond  the  trial. 
But  this  case  is  said  to  be  obviously 
not  law,  by  ^Ir.  Taylor,  Ev.  §  445. 
*  "  Though  we  have  no  express  dc- 


1  Luttrell  V.  Reynell,  1  Mod.  284. 

2  lliirrison  v.  Bhides,  3  Camp.  458, 
per  Lord  Ellenborough  ;  Jones  v. 
Brewer,  4  Taunt.  4  7,  per  Ili'ath,  J. 

8  Trtylor's  Ev.  §  44.5,  citing  Harri- 
son V.  Blades,  3  Camp.  458. 

*  R.  r.  Savage,  5  C.  &  P.  143,  per 
Patteson,  J. 


cision  upon  the  subject,  it  seems  clear 
upon  principle  that  the  deposition  or 
testimony  of  u  witness  formerly  taken 
in  the  same  cause  can  be  read  in  evi- 


6  R.  V.    Hogg,   C    C.   &   P.   17G,  per  dence,  on  showing  that  he  is  sick  and 

(Jurney,  B.  ;  R.  u.  Edmunds.  Ibid.  1G5,  unable  to  attend,   insane,  or  in  such 

per  Tindal,  C.  J.;  R.  v.  Wilshaw,  C.  a  state  of  senility  as  to  have  lost  his 

&  Marsh.  145;  R.  v.  Cockl)urn,  Dear,  memory  of  the  i)ast,  eipially  as  where 

&    Bell,    203  ;    7    Cox,    265,    S.    C.  ;  he  is  deatl  or  out  of  the  jurisdiction. 

Jones  V.  Jones,   1    Cox    Ch.   R.   184;  1    Greenl.  on   Ev.  §   1G3,  n.  ;  Jack  v. 

Andrews  v.  Palmer,  1  Ves.  &  B.  22;  Woods,  5  Casey,  3  75.      The  evidence 

Fry  v.    Wood,    1    Atk.   445;    Corbett  that  I'hilip  Smyscr  fell  within  the  cat- 

V.   Corbett,  Ibid.    335,    33C.      Contm,  egory  of  loss  of  memory  and  general 

Doc  V.  Evans,   3  C.  &  P.  219,  where  mental  incapacity  from   olil  age   was 

Vaughan,  J.,  is  said  to  have  rejected  very  ample.     Nor  was  it  necessary  to 

the  depositions  of  a  witness,  who  was  have   him   in  court   for  examination, 

bed-ridden  and  nearly  a  century  old,  It  would  have  been  a  painful  and  im- 

185 


§  180.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


the  true  course  is  to  continue  the  case  until  the  witness  recovers;^ 
but  the  contrary  view  has  been  expressed  by  an  English  court,^ 
and  tliere  are  some  classes  of  cases  (e.  g.  criminal  of  high  grade) 
in  which  such  a  continuance  cannot  in  law  be  granted,  and 
others  in  wliicli  the  inconveniences  would  be  so  great  as  to  amount 
to  an  obstruction  of  justice. 

§  180.  The  evidence  of  the  original  witness  may  be  proved  by 
Mode  of  ^^'®  notes  of  counsel,  or  of  the  judge,  or  of  a  short-hand 
proof  of       reporter,  sworn  to  by  the  reproducing  witness :  nor  is 

evidence  '■  ^  "^  ^  " 

of  deceased   it  necessarv  that  the  notes  should  purport  to  give  more 

witness.  ... 

than  the  substance  of  the  language  of  the  original  wit- 
ness.^ In  such  case  the  notes  are  not  evidence  per  se  ;  their  only 
value  being  as  means  of  refreshing  the  memory  of  the  witness.^ 
But  the  whole  relevant  part  of   the  testimony  as  remembered 


proper  exposure,  and  no  rule  of  law 
requires  it.  Besides,  he  would  not 
have  understood  the  meaning  of  the 
subpoena,  —  would  not  have  attended, 
perhaps,  voluntarily,  —  and  an  attach- 
ment against  him  for  contempt  would 
have  been  entirely  out  of  the  question." 
It  was  abundantly  proved  that  at  the 
time  the  deposition  was  taken  he  was 
in  the  possession  of  his  memory  and 
reason.  It  was  therefore  rightly  re- 
ceived." Sharswood,  J.,  Emig  v. 
Diehl,  76  Penn.  St.  373;  S.  P.,  R.  v. 
Griswell,  3  T.  R.  720. 

»  See  Taylor's  Ev.  §  444. 

2  R.  V.  Marshall,  C.  &  Marsh.  147'. 

8  Infra,  §  514;  Tod  v.  AVinchelsea, 
3  C.  &  P.  387  ;  Doncaster  v.  Day,  3 
Taunt.  262  ;  Jeanes  v.  Wheedon,  2 
M.  &  Rob.  486  ;  R.  v.  Joliffe,  4  T.  R. 
290  ;  R.  V.  Christopher,  1  Den.  C.  C. 
536  ;  2  Car.  &  K.  994  ;  U.  S.  v.  Ma- 
comb, 5  McLean,  286;  U.  S.  i'.  White, 
5  Cranch  C.  C.  457;  Emery  v.  Fow- 
ler, 39  Me.  326  ;  Lime  Bank  v.  Hew- 
ett,  52  Me.  531  ;  Young  v.  Dearborn, 

22  N.  H.  372;  AVilliams  v.  Willard, 

23  Vt.  369;  Woods  v.  Keyes,  14 
Allen,  238  ;  Clark  v.  Voree,  15 
Wend.  193  ;  Huff  v.  Bennett,  6  N.  Y. 

186 


337  ;  Martin  v.  Cope,  3  Abb.  (N.  Y.) 
App.  182  ;  Sloan  v.  Summers,  -20  N. 
J.  L.  16  ;  Wolf  V.  Wyeth,  11  S.  &  R. 
149;  Rhine  v.  Robinson,  27  Penn.  St. 
30  ;  Philadel.  R.  R.  v.  Spearen,  47 
Penn.  St.  300 ;  Brown  v.  Com.  73 
Penn.  St.  321  ;  Summons  v.  State,  5 
Oh.  St.  325  ;  Home  v.  Williams,  23 
Ind.  37;  Marshall  v.  Adams,  11  111. 
37;  Mineral  Point  R.  R.  v.  Keep,  22 
111.  9 ;  Rivereau  v.  St.  Ament,  3 
Greene  (Iowa),  118  ;  Burson  v.  Hunt- 
ington, 21  Mich.  415  ;  Fisher  v.  Kyle, 

27  Mich.  454  ;  Jones  v.  Ward,  3  Jones 
L.  24;  Riggins  v.  Brown,  12  Ga.  271  ; 
Trammell  v.  Hemphill,  27  Ga.  525; 
Gildorsleeve  r.  Caraway,  10  Ala.  260; 
Smith  0.  Steamboat  Co.  1  How.  Miss. 
479;  Thompson  v.  Blackwell,  17  B. 
Mon.    609  ;  Thurmond    v.    Trammell, 

28  Tex.  371;  People  v.  Murphy,  45 
Cal.  13  7.  For  a  more  stringent  rule 
see  U.  S.  V.  Wood,  3  Wash.  C.  C. 
440  ;  Com.  i;.  Richards,  18  Pick.  434; 
Warren  v.  Nichols,  6  Cow.  162; 
Black  V.  Woodrow,  39  Md.  194; 
Ephraims  v.  Mm-dock,  7  Blackf.  10. 

4  Waters  v.  Waters,  35  Md.  531  ; 
Zitske  V.  Goldberg,  38  Wise.  217. 
See  fully  infra,  §  514. 


CHAP.  IV.]  DEPOSITIONS   IN   PERPETUAM   MEMORIAM.  [§  181. 

must,  if  required,  be  given,^  and  the  mere  notes  of  the  judge, 
unsworn  to,  or  unproved,  cannot  be  received.^  If  the  judge  be 
alive  he  must  be  called  as  a  witness,  the  notes  being  then  receiv- 
able to  refresh  his  memory.^  • 

Ui^W.  EXCEPTION  AS  TO  DEPOSITIONS  IN  PERPETUAai  MEMORIAM. 

§  181.  Proof  in  perpetual  memory  (^prohatio  in  perpetuam  rei 
memoriaiii)  is  evidence  taken  provisionally,  under  order   p^  ^^;_ 
of  a  competent  court,  to  be  used  subsequently  in  cases    fion^ taken 

^  ,  -^  •'  _       111  perpet- 

where  no  other  mode  of  producing  the  same  proof  is  uai  mem- 
feasible.  The  Roman  law  permits  evidence  to  be  thus 
provisionally  received,  in  anticipation  of  suits  which  a  party  is 
prevented  from  instituting  by  no  fault  of  his  own  ;  supposing 
that  in  such  case  evidence  exists  which,  if  not  at  once  taken,  will 
be  lost.*  The  canon  law,  taking  hold  of  the  conscience,  extended 
this  right  to  all  cases  in  which  it  was  important,  in  the  interests 
of  justice,  to  register  testimony  which  would  otherwise  be  lost.^ 
As  to  this  form  of  testimony  the  following  qualifications  are  ob- 
served : 

1.  Such  evidence,  to  be  thus  perpetuated,  must  be  ephemeral. 
Witnesses,  whose  death  might  be  looked  forward  to,  and  whose 
testimony  could  not  be  otherwise  reproduced,  are  taken  as  the 
usual  illustrations  of  the  rule.  But  the  principle  applies  equally 
to  all  proof  equally  ephemeral.  This  ])rineiple  is  acted  on  by 
our  courts  when  they  direct  particular  articles  (e.  g.  instruments 
of  crime)  to  be  impounded  and  placed  under  the  custody  of  the 

^  Goss  V.  Quinton,  3  M.  &  G.  625  ;  Nichols,  6  Met.  261."  Chapman.  ,f.. 
Robinson  v.  Scotney,  19  Ves.  584  ;  Woods  v.  Keyes,  14  Allen,  238. 
Smithy.  Biggs,  5  Sim.  391  ;  Tibbetts  «  Huff  j..  Bennett,  4  Santlf.  120; 
V.  Flanders,  18  N.  H.  284  ;  Marsh  v.  Miles  v.  O'Hara,  4  Binn.  108  ;  Sehall 
Jones,  21  Vt.  378;  Com.  D.Richards,  u.  Miller,  5  Whart.  11.  15();  Living- 
IB  Pick.  431;  Wood  v.  Keyes,  14  ston  v.  Co.x,  8  W.  &  S.  Gl  ;  State  v. 
Allen,  236;  Gildersleeve  v.  Conway,  McLeod,  1  Hawks,  344;  Zitske  v. 
10  Ala.  260.     Infra,  §§  514,  1109.  Goldberg,  38  Wise.  217. 

"The   rule   is    settled,    that   when         »  (irimm    v.    Ilamel,    2    Hilt.    431. 

proof  is  offered   of  what  a  deceased  See  Conradi  r.  Conradi,  L.   U.    1    T. 

witness  has  testified  at  a  former  hear-  &    D.    514;    Learmouth,   ex  parte,  6 

lag,  it  must  be  not  merely  of  a  part  Madd.  113. 

of  it,  or  the  substance   of  it,  but   the         *  Sec   L.   40.    1).   ad    leg.    (ix.    2); 

whole  of  the  testimony  touching  the  Nov.  90,  c.  4. 

matter  in  controvesy.     Conunonwcaltli         *  Cap.  5.    x.  Ut  lite  n.  cont.  ii.  6; 

V.  Richards,  18  Pick.  434;   Warren  v.  C.  34,  41,  43,  x.  De  tCKt.  (ii.  20.) 

187 


§  182.]  TIIR   LAW    OF   EVIDENCE.  [bOOK  I. 

court  ;  and  when,  on  a  crime  being  committed,  steps  are  taken 
under  the  direction  of  a  competent  magistrate,  to  have  measure- 
ments and  pliotographs  of  tlie  locus  delicti,  and  of  all  indications 
of  guilt  on  building  or  soil.  The  canon  law  recognizes,  in  addi- 
tion, the  right  of  a  party  who  has  interests  dependent  upon  a 
writing  in  process  of  decay  or  obliteration,  to  have  such  writing 
juridically  perpetuated  by  exemplification .^ 

2.  The  proceedings  must  aS'  far  as  possible  be  carried  on  in 
conformity  with  the  ordinary  laws  of  evidence.  Notice,  for  in- 
stance, should  be  given  to  all  known  parties  in  interest,  and  op- 
portunity afforded  to  them  to  come  in  and  cross-examine.^ 

3.  The  testimony  must  be  deposited  in  court,  to  be  open  for 
juridical  use  to  the  opposite  party. 

4.  Although  such  testimony  can  be  taken  before  *a  suit  is  val- 
idly begun  (g.  g.  in  cases  of  contumacious  absence  making  it  im- 
possible to  serve  a  writ),  j^et,  by  the  canon  law,  if  the  institution 
of  a  suit,  when  practicable,  is  wilfully  delayed,  the  testimony 
will  be  excluded.^ 

§  182.  Under  the  English  equity  practice,  when  the  testimony 
of  a  material  witness  is  likely  to  be  lost  by  death  or  departure 
from  the  realm,  a  bill  to  perpetuate  testimony  is  granted  to  take 
the  deposition  of  such  witness.'*  In  1842,  this  right  was  ex- 
tended so  as  to  enable  any  person,  who,  under  circumstances 
alleged  by  him  to  exist,  would  be  entitled  to  legal  remedies  on 
the  happening  of  any  future  event,  though  not  before,  to  file  a 
bill  in  chancery  to  perpetuate  testimony  which  might  be  material 
in  pursuing  such  remedies.  In  1856  the  divorce  court  was  au- 
thorized to  make  decrees  declaratory  of  legitimacy  in  advance  of 
legal  process.  In  suits  to  perpetuate  testimony,  whether  under 
these  statutes,  or  in  the  ordinary  equity  practice,  parties  who 
have  an  interest  in  contesting  the  plaintiff's  claim  must  be  cited,^ 
and  will  be  compelled  to  appearand  answer;^  and  the  witness 
is  to  be  examined  according  to  the  practice  of  courts  of  law  in 

1  Cap.  4,  X.  ii.  6.  ^  Dearborn  v.  Dearborn,  10  N.  H. 

^  See  Heffter,  Inst.  p.  528.  473.     See  Faunce  v.  Gray,  21  Pick. 

8  See   Weinke,    Rechtslexicon,    II.  243. 

164;  Cap.   5,  x.  Ut  lite  (ii.  6).  «  Taylor's  Ev.   §  490,  citing  EUice 

*  Gresley's   Eq.  Ev.   129;    Smith's  i'.  Rowpell,  2   New  R.  3,    150;  6'.   C. 

Chan.  Pr.  765.     As  to  N.  Y.  statute,  32  Beav.  299,  308,  318. 
see  Fay's  Stat.  ii.  8-10. 

188 


CHAP.  IV.]  DEPOSITIONS  IN   PERPETUAM   MEMORIAM.  [§  184. 


reference  to  witnesses  going  abroad. ^  Ordinarily  the  bill  must 
set  forth  that  the  facts  to  which  the  testimony  relates  cannot  be 
immediately  investigated  in  a  court  of  law ;  or  if  they  can,  that 
the  sole  right  of  action  belongs  to  an  opposing  party ;  or  that 
such  other  party  has  interposed  obstacles  that  prevent  the  insti- 
tution of  an  action  .2 

§  183.  In  the  United  States,  the  time  for  recording  the  dep- 
ositions so  taken  is  usually  limited  by  statute;  and  depositions 
not  recorded  within  the  prescribed  time  are  inadmissible.^  It  is 
generally  essential  to  the  admission  of  such  depositions  that  they 
should  have  been  taken  before  the  commencement  of  the  suit  in 
which  they  are  used  ;  ^  though  it  has  been  said  that  a  deposition 
in perpetuam  may  be  used  in  suits  pending  at  the  time  of  the 
caption,  in  cases  where,  prior  to  the  trial  of  such  suit,  the  witness 
has  died.^ 

§  184.  Publication  of  depositions  taken  in  perpetual  memory 
is  refused  except  in  cases  of  witnesses  dead,  or  incapable  of  at- 
tendance, and  in  support  of  a  suit  or  action.** 


1  Tiiylor,  §  490. 

2  Booker  v.  Booker,  20  Ga.  777. 
See  Com.  v.  Stone,  Thacli.  C.  C.  604. 
See  Smith  v.  Grosjean,  1  Patt.  &  H. 
109. 

2  Braiiitroe  r.  Ilingham,  1  Pick. 
24.^;  Com.  v.  Stone,  Tliacli.  C.  C.  G04; 
Myers  V.  Anderson,  AVri;^lit  (Oliio), 
513.     See  Fay's  Stat.  ii.  8-10. 

*  Greenfield  v.  Ciishman,  16  Mass. 
393.  See,  liowever,  under  N.  Y.  stat- 
ute, Patons  V.  Westervelt,  5  How.  Pr. 
399;  2  Wait's  Pr.  675. 

^  Dearborn  v.  Dearborn,  10  N.  II. 
473.  As  to  Virginia  practice,  see 
Smitli  1-.  Grosjean,  1  Patt.  &  II.  109. 


courts  now  act  with  regard  to  evidence 
and  those  which  jirevailed  in  former 
times.  The  phiintiif  in  the  suit,  which 
was  commenced  in  1872,  claimed  to 
be  entitled  to  large  estates,  upon  an 
allegation  that  his  elder  brother, 
through  whom  the  defendant  derived 
title,  was  illegitimate,  having  been 
born  before  the  marriage  of  his  i>ar- 
ents.  The  elder  brother  had  ilnriiig 
his  life  been  treated  as  legitimate, 
and  had  taken  possession  of  the  es- 
tates accordingly ;  but  the  plaintiff 
alleged  that  he  had,  since  his  broth- 
er's death,  discovered  facts  which 
proved    the   illegitimacy.     From    the 


1    Smith's  Ch.    Pr.    768;  Taylor,     defendant's  answer  it  appeared  that  in 


§  490.  citing  Morrison  v.  Arnold,  19 
Ves.  670  ;  Atty.  Gen.  v.  Hay,  2  Hare, 
518;  Wequelin  v.  Wequelin,  2  Cur- 
teis,  263. 

"  The  case  of  Vane  v.  Vane,  which 
came  before  the  court  of  appeal  on 
Wednesday,  April   5,  affords  a  strik- 


1802,  a  few-  years  after  the  birth  of 
the  plaintiff's  elder  brother,  a  suit 
had  been  instituted  in  his  name  to 
perj)etuate  testimony  of  that  which 
was  then  alleged  to  be  a  fact,  viz., 
that  he  was  born  after  the  marriage 
of    his    parents.      To    that   suit    the 


ing  illustration  of  the  difference  be-     j)laintiff  in   Vane  v.   Vane  was   not  a 
tween    the   principles   on    which   the     party;    indeed,  he  was   not   born  till 

189 


§  185.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


IV.   EXCEI'TION   AS  TO  MATTERS  OF  GENERAL  INTEREST  AND  ANCIENT 

POSSESSION. 

§  185.  In  matters  of  general  interest,  as  to  which  there  is  no 
such  controversy  existing  as  to  induce  the  pre-arrang- 
ing of  testimony  for  a  particular  case,  the  declarations 
of  deceased  witnesses,  as  to  reputation  in  ancient  times, 
and  ancient  documentary  evidence,  may  be  received  to 
prove  matters  of  public  interest,  such  as  boundaries  of 
counties  and  towns,  and  rights  of  common.  Such  facts,  indeed, 
could  rarely  be  proved  at  all  if  we  excluded  ancient  testimony 
of  this  sort.  And  as  to  it  we  may  make  this  observation  :  it  has 
not  been  exposed  to  the  test  of  oath  and  of  cross-examination, 
but  it  has  been  exj^osed  to  an  equally  severe  test,  contemporane- 
ous criticism  from  parties,  some  of  them  adverse,  and  in  the  face 
of  such  criticism,  it  has  settled  down,  with  its  consequences,  in 


Reputation 
of  com- 
munity ad- 
missible as 
to  matters 
of  public 
interest. 


some  years  after  it  was  commenced. 
Some  depositions  were  taken  in  it, 
and  they  remained  in  the  custody  of 
the  court.  The  defendant  in  Vane 
V.  Vane  applied  for  an  order  that 
these  depositions  might  be  published; 
the  plaintiff  resisted  the  application, 
on  the  grounds  that  it  was  contrary 
to  the  settled  practice  of  the  court,  as 
shown  by  Coventry  v.  Coventry  (2 
R.  &  M.  144),  to  publish  the  depo- 
sitions in  such  a  suit  except  as  be- 
tween the  parties  to  it,  and  that  the 
depositions  could  not  in  any  event  be 
admissible  as  evidence  against  the 
plaintiff  in  Vane  v.  Vane  in  that  suit. 
Vice-Chancellor  Malins,  reserving  the 
question  of  the  admissibility  of  the 
depositions  as  evidence,  ordered  that 
they  should  be  published  immediately 
after  the  time  for  the  closing  of  the 
evidence  in  Vane  v.  Vane.  The  court 
of  appeal  (James  and  Mellish,  L.  JJ., 
and  Baggallay,  J.  A.)  went  still  fur- 
ther. They  ordered  that  the  deposi- 
tions and  the  proceedings  in  the  old 
suit  should  at  once  be  open  to  both 
the  parties  to  the  new  suit,  and  they 

190 


extended  the  time  for  closing  the  evi- 
dence in  the  new  suit  for  two  months, 
in  order  to  give  both  parties  ample 
opportunity  for  considering  the  depo- 
sitions in  the  old  suit.  Lord  Justice 
Mellish  pointed  out  that  the  deposi- 
tions in  question,  even  though  they 
might  be  inadmissible  as  evidence, 
might  be  the  means  of  putting  the 
parties  on  the  right  track  to  obtain 
evidence.  And  he  added,  that  the 
views  of  the  courts  as  to  the  best 
method  to  be  adopted  for  the  discov- 
ery of  truth  have  entirely  changed  in 
recent  times.  And  Lord  Justice 
James  based  his  decision  on  .this 
ground,  that  if  the  depositions  in 
question  had  been  in  the  possession 
of  one  of  the  parties  to  the  new  suit, 
the  other  party  would  have  been  com- 
pelled to  make  discovery  of  them. 
The  court,  therefore,  ought  to  do  that 
which  it  would  have  compelled  the 
parties  to  do,  and  in  fact  the  interests 
of  truth  and  justice  required  that  both 
parties  should  see  the  depositions" 
London  Solicitors'  Journal,  Ap.  8, 
1876. 


CHAP.  IV.]  DECLARATIONS   AS   TO   PUBLIC   RIGHTS. 


[§  185. 


the  rank  of  established  facts.  Hence,  on  such  public  matters  as 
boundaries  of  counties  and  of  municipalities,  rights  of  common, 
and  public  highways,  the  declarations  of  deceased  ancient  per- 
sons, and  old  documents,  each  originating  ante  litem  motani,  or 
before  a  controversy  had  arisen  for  which  such  testimony  could 
have  been  concocted,  are  admissible,  when  the  witnesses  had  pe- 
culiar means  of  knowing  what  was  the  ancient  reputation  as  to 
the  matters  of  which  they  speak. ^  So  landmarks  and  marked 
boundaries,  such  as  would  be  matters  of  general  observation  in 
a  community,  may,  in  this  country,  be  proved  by  hearsay  testi- 
mony as  to  what  in  old  times  was  believed,  whenever  such  bound- 
aries are  coincident  with  public  boundaries,  or  whenever  such 
boundaries  belong  to  a  system  in  which  the  community  is  inter- 
ested.2     The  ground  for  the  reception  of  such  testimony  is  the 


1  Best's  Ev.  §  497.;  R.  v.  Bedford- 
sliire,  4  E.  &  B.  535  ;  Creese  v.  Bar- 
rett, 1  C,  M.  &  R.  919;  Butler  v. 
Mountgarret,  7  Ho.  Lo.  Cas.  633  ; 
Boardman  v.  Reed,  6  Peters,  341  ; 
EUicott  V.  Pearl,  10  Pet.  412  ;  Shutte 
j;.  Thompson,  15  Wall.  151  ;  Smith  v. 
Forrest,  49  N.  H.  230  ;  Morse  v.  Em- 
ery, 49  N.  H.  239  ;  Wood  v.  Foster, 
8  Allen,  24;  Hannefin  v.  Blake,  102 
Mass.  297  ;  Casey  v.  Inloes,  1  Gill, 
430  ;  McCausland  v.  Fleming,  63 
Penn.  St.  38 ;  Cline  v.  Catron,  22 
Grat.  ^78  ;  Toole  v.  Peterson,  9  Ired. 
L.  180  ;  Shook  v.  Pate,  50  Ala.  91  ; 
Evans  v.  Hurt,  34  Tex.  Ill  ;  Cox  v. 
State,  41  Tex.  1. 

In  The  Duke  of  Newcastle  v.  Hun- 
dred of  Broxtowe,  4  B.  &  Ad.  273, 
the  question  was,  whether  Notting- 
ham Castle  was  within  the  hundred  ; 
and  it  was  held  that  orders  made  at 
the  county  sessions,  between  1654  and 
16G0,  in  which  the  castle  was  de- 
scribed as  being  within  the  hundred, 
were  admissible,  as  the  justices  must 
be  presumed  to  have  had  sulHcient  ac 


was  given  from  Domesday  Book  and 
an  old  charter  of  Henry  VI.,  the 
judge  was  right  in  telling  the  jury  to 
act  on  the  evidence  of  a  more  modern 
and  continuous  reputation.  But  when 
the  question  was  as  to  the  rights  of 
the  county  of  the  City  of  Chester, 
as  between  that  city  and  the  County 
Palatine  of  Chester,  a  decree  by  a  lord 
treasurer  and  other  persons  who  were 
not  a  competent  tribunal,  and  who 
had  no  personal  knowledge  of  the 
facts  except  such  as  they  derived  from 
an  irregular  judicial  jjroceeding,  was 
held  inadmissible  evidence  of  repu- 
tation. Rogers  v.  Wood,  2  B.  &  Ad. 
245  ;  Powell's  Evidence  (4th  ed.), 
156. 

So  the  conversations  of  former  ten- 
ants of  a  manor,  and  of  other  persons 
interested  in  it,  have  been  held  good 
evidence  as  to  the  boundaries  of  the 
manor.  Doe  v.  Sleeman,  9  Q.  B. 
298. 

2  Boardman  v.  Reed,  6  Pet.  328  ; 
Conn  t'.  Penn,  Pet.  C.  C.  496  ;  Fra- 
ser  V.  Hunter,  5  Cr.  C.  C  4  70;  Ad- 


quaintance  with  the  subject  to  which  ams  v.  Stanyan,  24  N.  H.  40.j  ;  Wen- 
their  declarations  related;  and  that,  dell  r\  Abbott,  45  N.  H.  349;  Child 
although  contrary  evidence  that  the  r.  Kingsbury,  46  Vt.  47  ;  Com.  v. 
castle  was  excepted  from  the  hundred     Ileffron,   1U2   Mass.  148;  Wooster  v. 

lltl 


§  185.]  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

supposition  that  the  universality  and  notoriety  of  the  interests 
coneerned  remove  the  temptation  and  the  ability  to  misrepresent, 
which  would  arise  if  such  evidence  Avere  received  in  matters  of 
merely  private  and  personal  concern.  Accordingly,  it  is  rejected 
wherever  the  point  at  issue  appears  to  partake  more  of  the  nat- 
ure of  a  private  than  of  a  public  interest.^  Thus  Coltman,  J., 
argues :  ^  "  The  true  line  (says  Butler,  J.,  in  R.  v.  Criswell)  for 
courts  to  adhere  to  is,  that  wherever  evidence  not  on  oath  has 
been  repeatedly  received  and  sanctioned  by  judicial  determina- 
tion, it  shall  be  allowed  ;  but  beyond  that,  the  rule  that  no  evi- 
dence shall  be  admitted,  but  what  is  on  oath,  shall  be  observed. 
....  Evidence  of  opinion  is  admitted  in  some  cases  Avitbout 
oath  ;  as  for  instance  where  reputation  is  given  in  evidence  to 
prove  a  public  right The  principle  upon  which  I  con- 
ceive the  exception  to  rest  is  this,  that  the  reputation  can  hardly 
exist  without  the  concurrence  of  many  parties  interested  to  in- 
vestigate the  subject ;  and  such  concurrence  is  presumptive  evi- 
dence of  the  existence  of  an  ancient  right,  of  which,  in  most  cases, 
direct  proof  can  no  longer  be  given,  and  ought  not  to  be  ex- 
pected :  a  restriction  now  generally  admitted  as  limiting  the  ex- 
ception is  this,  that  the  right  claimed  must  be  of  a  public  nature 
affecting  a  considerable  number  of  persons."  ^  To  this  Alderson, 
B.,  adds  :  "The  general  interest  which  belongs  to  the  subject 
would  lead  to  immediate  contradiction  from  others,  unless  the 
statement  proved  were  true  ;  and  the  public  nature  of  the  right 
excludes  the  probabilit}'  of  individual  bias,  and  makes  the  sanc- 
tion of  an  oath  less  necessary."  ^  To  the  admissibility  of  such 
evidence  it  is  no  longer  considered  an  essential  prerequisite  that 
there  should  be  proof  of  the  exercise  of  the  right  claimed  within 
the  memory  of  living  men  ;  though  the  absence  of  such  proof 
■will  affect  the  value  of  the  evidence  received.^     Nor,  as  we  have 

Butler,   13    Conn.    309;    Ratclitfe   v.  116;  Den  v.  Herring,  3  Dev.  L.  340; 

Gary,  4  Abb.  (N.  Y.)  App,  4  ;  Don-  Smitli  v.  Kussell,  37  Tex.  247.    Inira, 

ahue  V.  Case,  61  N.  Y.  631  ;  Nieman  §  188. 

V.  Ward,  1  Watts  &  S.  68  ;  McCaus-  ^  Powell's  Evidence  (4th  ed.),  151. 

land    V.   Fleming,   63   Penn.   St.    36  ;  2  Wright  v.   Doe,   7  A.   &  E.  360. 

though   see   Winter  v.    U.   S.   Hemp.  ^  ^,  (j^  j^  ^ijg  Exchequer  Chamber, 

344  ;  Redding  v.   McCubbin,   1  Har.  4  Bing.  N.  C.  528. 

&  M.  368  ;  Ralston  v.  Miller,  3  Rand.  *  Powell's  Evidence  (4th  ed-),  152. 

(Va.)    44  ;   Doe   r.   Roe,  4    Hawks,  ^  Creese  v.  Barrett,  1  C,  M.  &  R. 
192 


CHAP.  IV.] 


HEARSAY   AS   TO   ANCIENT   FACTS. 


[§  186. 


seen,  is  it  an  objection  to  such  evidence  that  it  is  hearsay  derived 
from  hearsay.^ 

§  186.  A  fact  of  interest  to  a  whole  community  may  indubitably 
be  thus  established,  because  the  statement  of  a  witness   ^ 

,       .  .  «  .        .  Facts  only 

as  to  the  impression  of  a  community  is  open  to  correc-  of  personal 
tion  by  calling  other  witnesses  as  to  such  impression.  It  cannot  be 
is  otherwise,  however,  as  to  statements  concerning  facts  ^°  P^ved. 
as  to  which  a  community  would  not  be  likely  to  be  impressed.^ 
Acting  on  this  distinction,  the  courts  have  excluded  hearsay'-  evi- 
dence, that  a  deceased  person  planted  a  tree  near  the  road,  and 
stated  at  the  time  of  planting  it  that  his  object  was  to  show 
where  the  boundary  of  the  road  Avas  when  he  was  a  boy  ;  ^  and 
when  the  issue  is  whether  a  road  be  public  or  private,  declara- 
tions by  old  persons  since  dead,  that  they  have  seen  repairs  done 
upon  it,  will  not  be  admissible.*  So  where  the  question  was 
whether  a  turnpike  stood  within  the  limits  of  a  town,  though 
evidence  of  reputation  was  received  to  show  that  the  town  ex- 
tended to  a  certain  point,  yet  declarations  by  old  people,  since 
dead,  that  formerly  houses  stood  where  none  any  longer  re- 
mained, were  rejected,  on  the  ground  that  these  statements  were 
evidence  of  a  particular  fact.^  Reputation  of  a  neighborhood 
as  to  a  particular  "  poplar  corner  "  has  been  for  the  same  reason 
excluded.*^ 


19,  930;  Dunraven  v.  Llewellyn,  15 
Q.  B.  791,  809;  R.  v.  Sutton,  8  A.  & 
E.  523,  n.  c;  Curzon  v.  Loniax,  5 
Esp.  60,  per  Ld.  Ellonborough ;  Steel 
V.  Prickett,  2  Stark.  R.  466,  per  Ab- 
bott, C.  J.  ;  Roe  v.  Parker,  5  T.  R. 
32,  per  Grose,  J.  ;  though  see  U.  S. 
V.  Castro,  24  How.  346. 

^  Barraclou;;h  v.  Johnson,  8  A.  & 
E.  99,  108  ;  Taylor's  Ev.  §  554.  Supra, 
§  49;  infra,  §  227. 

^  Mosiiley  v.  Davies,  11  Price,  162 
169-172  ;  Chatfielil  i-.  Fryer,  1  Price 
253  ;  Garnons  v.  Barnard,  1  Anstr 
298;  3  Eag.  &  Y.  380,  S.  C;  Welit 
t;.  Jesus  College,  7  C.  &  P.  284  ;  Dea 
cle  V.  Hancock,  McClel.  85  ;  13  Price 
226,  S.  C     See,  also,  Crease   v.  Bar 


13 


rett,  1  C,  M.  &  R.  919,  930  ;  5  Tyr. 
458,  472,  i\  ('. 

8  R.  V.  Bliss,  7  A.  &  E.  550. 

*  Ibid.  552. 

^  Ireland  v.  Powell,  per  Chambre, 
J.,  Pea.  Ev.  16,  cited  by  Williams,  J., 
in  R.  V.  Bliss,  7  A.  &  E.  555. 

6  Shutte  V.  Thompson,  15  Wall. 
162.     In  this  case  Strong,  J.,  said  :  — 

"  We  pass  now  to  consider  the 
fourth  bill  of  exceptions.  The  court 
refused  to  allow  proof  of  the  reputa- 
tion of  the  neighborhood  as  to  a  pop- 
lar corner  at  the  present  day,  *  un- 
less such  reputation  was  traditionary 
in  its  character,  having  passed  down 
from  those  who  were  acciuainled  with 
the  reputation  of  the  tree  from  an 
early  day  to  the  present  time,'  or  un- 

193 


§  187.] 


THE    LAW    OF   EVIDENCE. 


[book  I. 


§  187.  As  has  been  already  incidentally  noticed,  the  admission 
J  J  ,  of  such  testimony  is  confined  to  litigation  as  to  public 
private         interests.     Between  public  interests  and  private  inter- 

riglits  can-  ,..,.,.  »    , 

not  be  so  csts,  wucn  the  admissibihty  or  hearsay  comes  up  in 
this  relation,  it  is  difficult  to  draw  an  exact  line  of 
principle  ;  and  the  distinction  may  be  best  illustrated  by  recur- 
rence to  the  adjudications.  Hearsay  has  been  received  in  Eng- 
land to  establish  the  custom  of  manors,^  the  custom  of  mining 
in  a  particular  district,^  the  limits  of  a  town,^  the  extent  of  a 
parish,"^  the  boundary  between  counties,  parishes,  hamlets,  or 
manors,^  or  even  between  a  reputed  manor,  that  is,  an  estate 
which  from  some  intervening  defect  has  ceased  to  be  an  actual 
manor,  and  the  freehold  of  a  private  individual,^  or  between 
old  and  new  land  in  a  manor  ;  "^  a  claim  of   tolls  on  a  public 


less  '  the  information  as  to  such  repu- 
tation of  the  tree  was  at  an  early  day.' 
But  the  court  permitted  the  defendant 
to  prove  that  the  occupants  of  the 
Laidley  Survey  No.  1,  and  of  the  Ma- 
son Tract  adjoining  thereto  (the  pop- 
lar being  a  corner  of  each),  claimed 
the  poplar  as  the  true  corner  of  their 
tracts.  To  this  ruling  of  the  court 
the  defendant  excepted. 

"  We  do  not  perceive  that  any  in- 
jury could  have  been  sustained  by  the 
defendant  in  consequence  of  this  rul- 
ing, even  if  it  was  incorrect,  certainly 
none  that  would  justify  our  sending 
the  case  to  a  new  trial.  But  there 
was  no  error.  Reputation  as  to  the 
existence  of  particular  facts  not  of  a 
public  nature  is  not  generally  admis- 
sible, though  where  the  existence  of 
the  facts  have  been  proved  aliunde, 
reputation  is  sometimes  received  to 
explain  them.  1  Greenl.  Ev.  §  138. 
Here,  however,  the  evidence  was 
offered  not  to  explain  a  fact,  but  to 
establish  it.  We  do  not  propose  to 
discuss  this  subject  at  length.  It  is 
sufficient  to  say  that  the  limitations 
imposed  by  the  court  upon  the  evi- 
dence of  reputation  offered  are  fully 
194 


sustained  by  authority.  1  Stark.  Ev. 
ch.  3,  passim."  Strong,  J.,  Shutte 
V.  Thompson,  15  Wall.  162,  163. 

1  Doe  V.  Sisson,  12  East,  62;  Weeks 
V.  Sparks,  1  M.  &  Sel.  679;  Prichard 
V.  Powell,  10  Q.  B.  589,  explained  in 
Ld.  Dunraven  V.  Llewellyn,  15  Q.  B. 
812;  Moseley  v.  Davies,  11  Price, 
162;  White  v.  Lisle,  4  Madd.  214, 
224,  225  ;  Short  v.  Lee,  4  Jac.  &  W. 
464,  473. 

2  Crease  v.  Barrett,  1  C,  M.  &  R. 
919,  928-930.  See  Davies  v.  Morgan, 
1  C.  &  J.  587. 

8  Ireland  v.  Powell,  cited  Pea.  Ev. 
16,  per  Chambre,  J.,  and  recognized 
by  Williams,  J.,  in  R.  v.  Bliss,  7  A.  & 
E.  555. 

*  R.  V.  Mytton,  2  E.  &  E.  557  ;  S. 
C.  nom.  Mytton  i'.  Thornbury,  29  L, 
J.,  M.  C.  109. 

5  Nicholls  v.  Parker,  14  East,  331, 
n. ;  Brisco  r.  Lomax,  8  A.  &  E.  198  ; 
3  N.  &  P.  388,  S.  C;  Evans  v.  Rees, 
10  A.  &  E.  151  ;  2  P.  &  D.  627,  S.  C. ; 
Plaxton  V.  Dare,  10  B.  &  C.  17 ;  5  M. 
&  R.  1,  S.  C. ;  Thomas  v.  Jenkins,  6 
A.  &  E.  525  ;  1  N.  &  P.  588,  S.  C. 

«  Doe  V.  Sleeman,  9  Q.  B.  298. 

^  Barnes  v.  Mawson,  1  M.  &  Sel.  81. 


CHAP.  IV.]  HEARSAY   AS   TO   ANCIENT   FACTS.  [§  188. 

road,^  the  fact  whether  a  road  was  public  or  private,^  a  prescrip- 
tive liability  to  repair  sea-walls,^  or  bridges,*  a  claim  of  highway,^ 
a  right  of  ferry ,^  the  fact  whether  land  on  a  river  was  a  public 
landing-place  or  not,"  the  existence  and  rights  of  a  parochial 
chapelry,^  the  jurisdiction  of  a  court,  and  the  fact  whether  it 
was  a  court  of  record  or  not,^  the  existence  of  a  manor, ^"^  a 
prescriptive  right  of  toll  on  all  malt  brought  by  the  west  coun- 
try barges  to  London, ^^  a  right  by  immemorial  custom,  claimed 
by  the  deputy  day  meters  of  London,  to  measure,  shovel,  unload, 
and  deliver  all  oysters  brought  by  boat  for  sale  within  the  limits 
of  the  port  of  London, ^^  a  claim  by  the  lord  of  a  manor  to  all 
coals  lying  under  a  certain  district  of  the  manor,^^  a  claim  of 
lieriot  custom  in  respect  of  freehold  tenements  within  a  manor, 
held  in  fee-simple,^*  a  custom  of  electing  churchwardens  by  a 
select  committee,^^  and  a  prescriptive  right  to  free  warren  as 
appurtenant  to  an  entire  manor. ^^ 

§  188.  Proof  of  reputation,  on  the  other  hand,  has  been  re- 
jected in  England  where  the  question  was,  what  usage  had  ob- 
tained in  electing  a  schoolmaster  to  a  grammar  school,^"  whether 
the  sheriff  of  the  county  of  Chester,  or  the  corporation  of  the 
city  of  Chester,  was  bound  to  execute  criminals,^^  whether  cer- 
tain tenants  of  a  manor  had  prescriptive  riglits  of  common  for 
cattle  levant  and  couchant,^^  what  were   the   boundaries   of   a 

1  Brett  V.  Beales,  M.  &M.  416,418,  "  City  of  London  v.  Gierke,  Carth. 
per  Ld.  Tenterden.  181  ;  D.  of  Beaufort  v.  Smith,  4  Ex. 

2  R.   V.  Bliss,  7  A.  &  E.  555,  per     R.  450. 

Williams,  J.  12  Laybourn   v.   Crisp,  4  IM.   &    W. 

8  R.  V.  Leigh,  10  A.  &  E.  398,  409,  320, 

411.  18  Barnes  v.  Mawson,  1   M.  &  Scl. 

*  R.   V.  Sutton,  8   A.  &   E.   516  ;  3  77,  81.      In   that   case   evidence  was 

N.  &  P.  569,  S.  C.  given   of   a   uniform   exercise  of   the 

5  Crease  v.  Barrett,  1  C,  M.  &  R.  right. 

929,  per  Parke,  B.  ;  Reed  v.  Jackson,  "  Damcrell  v.  Protheroe,  10  Q.  B. 

1  East,  355.  20. 

«  Pirn  V.  Curell,  6  M.  &  W.  234.  "  Berry  v.  Banner,  Pea.  R.  156. 

'  Drinkwater  v.  Porter,  7   C.  &  P.  i"  Ld.  Carnarvon  v.  Villebois,  13  ^L 

181,  per  Coleridge,  J.  &  W.  313. 

8  Carr  v.  Mostyn,  5  Ex.  R.  69.  ^'^  Wiihiiell  v.  Gartliam,  1  Esp.  32». 

»  Goodtitle  V.  Dew,  Pea.  Add.  Cas.  325,  per  Ld.  Kenyon. 

204.  "  K.    I'.  Antrobus,  2  A.  &   E.  793- 

10  Steel  V.  Prickett,  2  Stark.  R.  466,  795. 

per  Abbott,  C.  J. ;  Curzon  v.  Lomax,  "  See  Ld.  Dunraven  i-.  Llewellyn, 

5  Esp.  60,  per  Ld.  Ellenborough.  15    Q.  B.    791,    811,    812,   overruling 

195 


§  188.]  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

waste  over  which  many  of  the  tenants  of  a  manor  claimed  a 
right  of  common  appendant/  whether  the  lord  of  a  manor  had 
a  prescriptive  right  to  all  wreck  within  his  manorial  boundaries,^ 
whether  the  plaintiff  was  exclusive  owner  of  the  soil,  or  had  a 
right  of  common  only,^  whether  the  land  in  dispute  had  been 
purchased  by  a  former  occupier,  or  was  part  of  an  entailed  es- 
tate of  which  he  had  been  tenant  for  life,'*  what  patron  formerly 
had  the  right  of  presentation  to  a  living,^  whether  a  farm  mo- 
dus existed,  and  what  was  its  nature,^  whether  a  party  had  a 
private  right  of  way  over  a  particular  field,"  whetlier  the  tenants 
of  a  particular  manor  had  the  right  of  cutting  and  selling  wood,* 
and  what  were  the  boundaries  between  two  private  estates.^ 
Where,  however,  it  was  shown  by  direct  testimony,  the  admis- 
sion of  which  was  unopposed,  that  the  boundaries  of  the  farm  in 
question  were  identical  with  those  of  a  hamlet,  evidence  of  repu- 
tation as  to  the  hamlet  boundaries  was  let  in  for  the  purpose  of 
proving  those  of  the  farm ;  for  though  it  was  objected  that  evi- 
dence should  not  be  thus  indirectly  admitted  in  a  dispute  between 
private  individuals,  the  court  overruled  the  objection,  Mr.  Jus- 
tice Coleridge  observing,  that  "  he  never  heard  that  a  fact  was 
not  to  be  proved  in  the  same  manner  when  subsidiary,  as  when 
it  was  the  very  matter  in  issue."  '^^ 

Weeks  v.  Sparke,  1   M.  &   Sel.  679;  Lyndhurst.     See,  however,   Webb  v. 

Williams    v.   Morgan,   15  Q.   B.   782.  Petts,  Noy,  44 ;  Donnison  v.  Elsley,  3 

See,   also,    and   compare   Warrick  v.  Eag.  &  Y.  1396,  n.  ;  and  cases  cited. 

Queen's   Coll.  Oxford,  40   L.  J.  785,  1   Ph.  Ev.    241,  n.    2  ;  Taylor's  Ev. 

788,  per  Ld.  Hatherley,  C.  §§  548-9,  from  which  the  above  recap- 

^  Ld.  Dunraven  v.  Llewellyn,  15  Q.  itulation  is  taken. 

B.  791.  1  SemWe,  per  Dampier,  J.,  in  Weeks 

2  Talbot  V.  Lewis,  1    C,  M.  &  R.  v.  Sparke,  1  M.  &  Sel.  691;  and  per 

495;  5  Tyr.  1,  S.  C.  Ld.    Kenyon,   in  Reed  v.  Jackson,   1 

8  Richards  v.  Bassett,   10  B.  &  C.  East,  357. 

663.  8  Blackett  v.   Lowes,  2  M.  &  Sel. 

*  Doe   V.  Thomas,  14   East,  323  ;  2  494,  500,  per  Ld.  Ellenborough. 

Smith,  L.  C.  432,  S.  C.  9  Clothier   i-.    Chapman,    14    East, 

fi  Per  Ld.    Kenyon,  in  R.   v.  Eris-  331,  n.     We  have  already  seen   that 

well,  3  T.  R.    723,  questioning  Bp.  of  a   similar   distinction    prevails   as   to 

Meath  v.  L.  Belfield,  1  Wils.  215.  character,   which   can   be   proved   by 

^  Wells  V.  Jesus  College,  7  C.  &  P.  reputation,  but  not  by  particular  acts. 

284,  per  Alderson,  B.;  White  v.  Lisle,  Supra,  §  56. 

4  Madd.    214,  224,   225;   Wright  v.  "  Thomas  r.  Jenkins,  6  A.  &  E.  525, 

Rudd,  cited    1  Ph.  Ev.  241,  per  Ld.  529;  1  N.  &  P.  S.  C.  588.     See,  also 
196 


CHAP.  IV.]  HEARSAY   AS   TO   ANCIENT   FACTS.  [§  189. 

189.  It  is  true,  as  will  be  seen  by  an  examination  of  the 


Briscor.  Lomax,  8  A.  &  E.  198,  213  ; 
3  N.  &  P.  388,  S.  C.  ;  Taylor's  Ev. 
§  549. 

"  Whether  evidence  of  reputation 
is  admissible  to  prove  or  disprove  a 
private  prexcriplive  rir/ht  or  liability,  is 
involved,"  continues  Mr.  Taylor,  "  in 
some  doubt.  See  Prichard  i).  Powell, 
10  Q.  B.  589.  In  the  case  of  More- 
wood  V.  Wood,  where  a  prescriptive 
right  of  digging  stones  on  the  lord's 
waste  was  claimed  by  the  defendant, 
as  annexed  to  his  estate,  and  the  lord 
offered  evidence  of  reputation  to  prove 
that  no  such  right  existed,  the  judges 
of  the  court  of  king's  bench  were 
equally  divided  on  its  admissibility;  14 
East,  327,  n.;  but  since  in  that  case  it 
is  difficult  to  see  how  the  public  could 
have  been  interested  in  the  matter, 
unless  it  had  been  shown,  which  it  was 
not,  that  the  rights  of  the  commoners 
were  infringed  by  the  defendant's 
claim,  such  evidence  would  probably, 
at  the  present  day,  be  rejected.  It 
has,  however,  been  determined  by  the 
court  of  queen's  bench,  that,  on  the 
trial  of  an  indictment  against  the  in- 
habitants of  a  county  for  the  non- 
repair of  a  public  bridge,  to  which  the 
defendants  had  pleaded  that  certain 
persons  named  were  liable  to  repair 
the  bridge  ratione  tenurne,  evidence  of 
reputation  was  admissible  to  support 
the  plea.  R.  i;.  Bedfordshire,  4  E.  & 
B.  535,  overruling  R.  v.  Wavertree, 
2  M.  &  Rob.  353,  and  confirming  R. 
V.  Cotton,  3  Camp.  444.  In  this  case 
it  was  very  properly  considered  that 
the  fixing  an  individual  with,  or  the 
relieving  him  from,  such  a  liability  as 
the  one  in  (juestion,  had  a  necessary 
tendency  to  abridge  or  increase  tlie 
liability  of  the  whole  neiizhborhood 
(see  Prichard  v.  Powell,  10  Q.  B.  5tiO, 
per  Patteson,  J.  ;  Drink watir  v.  Por- 
er,  7  C.  &  P.  181,  per  Coleridge,  J.)  ; 


and,  moreover,  that  the  admissibility 
of  evidence  of  reputation,  when  ten- 
dered to  disprove  a  public  liability 
or  right,  could  not  be  governed  by 
a  different  principle  from  that  which 
prevails,  when  such  evidence  is  of- 
fered to  establish  the  liability  or 
right." 

In  Duni'aven  r.  Llewellyn,  15  Q.  B. 
791,  in  the  exchequer  chamber,  the 
question  was  in  trespass,  as  to  the 
property  in  a  plot  of  ground  which  lay 
between  the  waste  of  the  ])laintiff  and 
the  estate  of  the  defendant.  Tlie 
plaintiff  offered  evidence  of  state- 
ments made  before  any  controversy 
arose,  by  his  deceased  tenants,  who 
as  such  had  exercised  commonable 
rights  over  the  waste  adjoining  the 
locus  m  quo ;  and  other  statements 
made  by  deceased  persons,  who,  al- 
though not  tenants,  were  resident  in 
the  manor,  and  well  accjuaintcd  with 
it.  No  evidence  was  given  of  an 
actual  enjoyment  of  the  right  on  the 
close  by  the  tenants.  Parke,  B.,  said: 
"  If  the  question  had  been  one  in 
which  all  the  inhabitants  of  the  ma- 
nor, or  all  the  tenants  of  it,  or  of  a 
particular  district  of  it,  had  been  in- 
terested, reputation  from  any  deceased 
inhabitant  or  tenant,  or  even  deceased 
residents  in  the  manor,  would  have 
been  admissible,  such  residents  liaving 
presumably  a  knowledge  of  mkIi  local 
customs;  and  if  there  had  Iieen  a  com- 
mon law  right  for  every  tenant  of  tiio 
manor  to  have  common  on  tlie  wastes 
of  a  manor,  reputation  from  any  de- 
ceased tenant  as  to  the  extent  of  those 
wastes,  and  therefore  as  to  uny  p.irtic- 
ular  land  being  waste  of  the  manor, 
would  have  been  admissible.  But,  .il- 
though  there  are  some  books  which 
state  that  'common  apnemlaiit  '  is  of 
'common  right;'  and  that  '  (unimon 
appendant '  is  the  '  common  law  riyht 

197 


§  189.]  THE   LAW   OF  EVIDENCE.  .  [BOOK  I. 

American  authorities  cited  above,^  that  with  us  we  have  a  se- 
ries of  rulings  extending  evidence  of  this  class  to  litigation  as 
to  boundaries  of  private  estates.  The  apparent  conflict  between 
the  English  and  American  cases,  on  this  point,  however,  is 
easily  explained,  and  the  two  lines  of  authorities  will  be  found 
to  start  from  a  common  principle.  In  England  the  boundaries  of 
each  estate  rest  on  an  insulated  title,  defined  by  private  deeds, 
and  interesting  personally  only  the  possessor  and  his  immediate 
neighbors.  With  such  boundaries  the  community  would  not  con- 
cern itself,  unless  in  consequence  of  a  litigation  which  would  make 
the  opinions  of  individuals  inadmissible ;  and  as  to  such  bound- 
aries there  could  be  therefore  no  tradition  or  reputation  entitled 
to  weight.  In  America,  on  the  other  hand,  our  boundaries  go 
back,  in  the  main,  to  proprietary  or  government  grants,  or  to 
purchases  from  the  Indians  ;  and  those  grants  or  purchases  were 
of  masses  of  land  in  blocks,  such  blocks  being  generally  marked 
by  two  distinguishing  features,  as  to  each  of  which  the  commu- 
nity would  take  an  interest.  In  the  first  place  the  exterior 
boundaries  of  these  blocks  are  lines  based  on  landmarks  some- 
times shifting,  sometimes  imperfectly  described,  the  meaning  of 
which  tradition  and  reputation  have  to  be  invoked  to  settle.^    In 

of  every  free  tenant  of  the  lord's  admissible  in  the  case  of  such  separate 
wastes,'  ....  it  is  not  to  be  under-  right,  each  being  private,  and  depend- 
stood  that  every  tenant  of  a  manor  has  ing  on  each  separate  prescription,  un- 
by  the  common  law  such  a  right;  but  less  the  proposition  can  be  supported, 
only  that  certain  tenants  have  such  a  that,  because  there  are  many  such 
right,  not  by  prescription,  but  as  a  rights,  the  rights  have  a  public  char- 
right  by  common  law  incident  to  the  acter,  and  the  evidence,  therefore,  be- 

grant This  right,  therefore,  is  comes  admissible. 

not  a  common  right  of  all  tenants,  but  We  think  this   position   cannot  be 

belongs  only  to  each  grantee   (before     maintained We  are  of  opinion, 

the  statute  of  Quia  emptores)  of  arable  therefore,  that  the  evidence  of  reputa- 

land  by  virtue  of  his  individual  grant,  tion  offered   in  this  case  was,  accord- 

and  is  an  incident  thereto;  and  is  as  ing  to  the  well  established  rule  in  the 

much  a  peculiar  right  of  the  grantee  modern  cases,  inadmissible,  as  it  is  in 

as  one  derived  by  express  gi'ant  or  pre-  reality  in  support  of  a  mere  private 

scription We  are  therefore  of  prescription;  and  the  number  of  these 

opinion  that  the  case  is  precisely  in  private  rights  does  not  make  them  to 

the  same  situation  as  if  evidence  had  be  of  a  public  nature."     Powell's  Ev. 

been   offered  that  there   were   many  4th  ed.  159. 

persons,  tenants  of  the  manor,  who  had  ^  See  notes  to  §§  185,  186. 

separate  prescriptive   rights  over  the  ^  "In  April,   1847,  the  joint  com- 

lord's  wastes;   and  reputation  is  not  missioners  of  Massachusetts  and  Rhode 

198 


CHAP.  IV.] 


HEARSAY   AS    TO   ANCIENT    FACTS. 


[§  190. 


the  second  place,  the  inner  lines  of  these  blocks,  by  virtue  of 
which  they  were  distributed  among  several  proprietors,  were 
generally  traced  from  the  same  uncertain  and  fluctuating  land- 
marks, which  reputation  and  tradition  were  required  to  explain, 
and  were  based  on  a  common  system  of  surveying,  so  that  the 
peculiarities  of  one  became  the  peculiarities  of  all.  Hence  it  is 
that  even  in  such  inner  lines,  constituting  the  particular  bound- 
aries of  private  estates,  the  community  took  such  an  interest  as 
made  its  common  opinion  of  value,  as  exhibiting,  not  merely 
what  the  parties  understood  the  boundaries  to  be,  but  what 
they  really  made  the  boundaries.  In  such  cases,  the  reputation 
of  the  community,  as  given  by  ancient  persons,  competent  to 
speak  on  the  subject,  before  litigation,  is  adinissible,  as  relating, 
in  fact,  to  matters  of  public  interest. ^ 

§  190.  Reputation,  it  need  scarcely  be  added,  must,  in  order 
to  be  evidence,  be  traced  to  a  local  community.     "  In    witnei^ses 
a  matter  in  which  all  are  concerned,  reputation  from    niusrb^^ 
any  one   appears  to   be   receivable ;  but  of   course   it   competent. 
would  be  almost  worthless,  unless  it  came  from  persons  who 


Island,  appointed  to  ascertain  and  es- 
tablish the  boundary  line  between  the 
two  states,  made  an  ap^reement  and 
presented  it  to  their  respective  legis- 
latures. 

"  Parties  living  in  IMassachusetts, 
whose  rights  were  afiected  by  this 
decision,  petitioned  the  legislature 
against  the  acceptance  of  the  com- 
missioners' report.  Mr.  Choate  ap- 
peared for  these  remonstrants.  A  por- 
tion of  the  boundary  line  was  described 
in  the  agreement  as  follows :  '  Begin- 
ning,' &c.,  &c.,  '  thence  to  an  angle  on 
the  easterly  side  of  Watuppa  Pond, 
thence  across  the  said  pond  to  the  two 
rocks  on  the  westerly  side  of  said 
pond,  and  near  thereto,  then  westerly 
to  the  buttonwood-tree  in  the  village 
of  Fall  River,'  "  &c.,  &c. 

In  his  argument,  commenting  on 
the  boundary,  Mr.  Choate  thus  re- 
ferred to  this  part  of  the  description  : 
"  A  boundary  line  between  two  sover- 


eign states  described  by  a  couple  of 
stones  near  a  pond,  and  a  butionivood 
sapling  in  a  village.  The  commission- 
ers might  as  well  have  defined  it  as 
starting  from  a  blue  jay,  thence  to  a 
swarm  of  bees  in  hiving  time,  and 
thence  to  five  hundred  foxes  with  fire- 
brands tied  to  their  tails."  Brown's 
Life  of  Choate,  298. 

When  the  boundaries  between  states 
were  so  loosely  given,  we  cannot  ex- 
pect to  find  greater  exactness  in  the 
boundaries  of  the  blocks  of  territory 
which  were  obtained  by  proprietary 
grant,  or  were  taken  from  the  Indians. 
There  is  scarcely  a  case  involving 
questions  of  this  kind  in  which  the 
landmarks  do  not  require  to  be  sup- 
plemented by  parol.  And  on  these 
landmarks,  private  deeds,  as  well  as 
public  grants,  depend. 

»  Sec   Conn  v.  Peters,  1   Pet.  C.  C. 
400;  Boardman  v.  Reed,    6  Pet.  .128; 
Raymond  v.  Cofl'ey,  •»  Oregon,  132. 
199 


§  191.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

were  shown  to  have  some  means  of  knowledge,  as  by  living  in 
the  neighborhood."  1 

§  191.  In  connection  with  evidence  of  reputation,  which  has 
Declara-  ^^^^^  j"^^  treated,  may  be  considered  that  of  the  dec- 
tions  of        larations  of  deceased  persons,  familiar  with  a  location, 

competent  '■  •   i       i        o      i       i      i 

deceased  and  having  no  tendency  to  mislead,  bucli  declarations 
pointing  have  been  received,  when  the  declarant  is  deceased,  and 
aHes'^re-"^  was  at  the  time  of  the  declarations  competent  and  dis- 
ceivabie.  interested,  provided,  however,  they  were  made  while 
he  was  pointing  out  the  boundaries  to  which  they  relate.^  Such 
declarations  are  to  be  subjected  to  severer  scrutiny  than  are  dec- 
larations as  to  the  reputation  of  a  neighborhood  as  to  matters  of 
public  interest.  The  latter  class  of  declarations  can  be  corrected 
by  calling  other  witnesses  as  to  the  reputation  of  a  community, 
which  is  a  common  fact  open  to  general  observation.  The  former 
declarations  (z.  e.  those  by  a  deceased  declarant  as  to  his  particu- 
lar opinion)  cannot  be  so  corrected  ;  and  it  is  proper,  therefore, 
that  such  declarations  should  only  be  received  when  made  coinci- 
dently  with  pointing  out  boundaries,  and  by  parties  either  per- 
forming business  duties  at  the  time,  or  having  no  interest  to  sub- 
serve in  making  the  declarations.^ 

^  Per  Parke,   B.,  Crease  v.  Barrett,  deed  mentioned   as  the  corner  where 

1  C,  M.  &  R.  928;  Powell's  Evidence,  the  description    began,    a    stake   and 

4th  ed.  1G3.    See,  to  same  effect.  Dun-  stones  on  land  of  B.,   and  a  witness 

raven    v.  Llewellyn,   15    Q.    B.   809;  testified   that  he  had  a  conversation 

Warwick  v.    Queen's  Coll.  40    L.  J.  with  B.,  since  deceased,  on  his  land, 

Ch.  785;  Evans  v.  Taylor,  7  A.  &  E.  while  he  owned  it,  about  the  corner, 

617;  though  see  Freeman  v.  Reed,  4  it  being  admitted  that  B.  had  never 

B.  &  S.  174;  Smith  v.  Brounfield,  Law  owned  the  land  in  controversy,  it  was 

R.  9  Ex.241.  held  that  it  was  inadmissible   to  show 

^  Daggett  V.    Shaw,  5   Mete.   223  ;  what    statement  B.  had  made  in  this 

Bartlett    v.    Emerson,   7    Gray,   174;  conversation.     Long   v.    Colton,    116 

Flagg  V.  Mason,  8  Gray,  556;  Long  Mass.  414. 

V.  Colton,  116  Mass.  414;  Bender  v.         "  The  declarations  of  deceased  per- 

Pitzer,   27  Penn.  St.  333.     See  Cook  sons  respecting  boundaries,"  said  Colt, 

V.  Harris,    61   N.   Y.  448.     In   Great  J.,   "  are  received   as  evidence  as  an 

Falls  Co.  V.  Worster,  15  N.   H.  412;  exception   to  the   rule   which  rejects 

Smith  V.  Forrest,  49  N.  H.   230;  and  hearsay   testimony.     In   most  of   the 

Scoggin    V.   Dalrymple,    7    Jones   L.  decided  cases,  it  is  held  that  the  dec- 

46,  a  wider  range  was  permitted.  laration  should  appear  to  have   been 

^  In  an  action  of  tort  for  breaking  made   in   disparagement   of  title,    or 

and    entering    the    plaintiff's    close,  against  the  interest  of  the  party  mak- 

where  it  appeared  that  the  plaintiff's  ing   it;   but   in    Daggett   v.   Shaw,   5 

200 


CHAP.  IV.] 


HEARSAY  AS  TO  ANCJENT  FACTS. 


[§  192. 


§  192.  It  should  be  remembered  that  declarations  of  this  class 
are  receivable  only  in  cases  .where  there  is  an  ambiguity  to  be 
cleared,  as  where  landmarks,  requiring  extrinsic  evidence  for 
their  explanation,  are  referred  to.  Hence  the  declarations  of  a 
deceased  person,  that  a  particular  boundary  was  laid  in  a  par- 
ticular way,  cannot  be  received  to  control  deeds  or  other  muni- 
ments of  title  in  matters  in  which  no  ambiguity  appears.-^ 

Met.  223,  it  is   said  that  the  rule,  as  tion    is   mere  narrative,  liable  to  be 

practised   in    this    commonwealth,   is  misunderstood    or     misapplied,    and 

not   so  restricted,  and   that   declara-  open  to  the  objections  which  i)revail 

tions  of  ancient  persons,  made  while  against  hearsay  evidence, 
in  possession  of  land  owned  by  them,         "  The  declaration  rejected  does  not 

pointing  out  their  boundaries  on  the  appear  to  have  been  offered  for  the 

land  itself,  are  admissible  as  evidence  purpose  of  establishing  a  boundary  by 

when    nothing  appears   to  show  that  traditionary    evidence   or   reputation, 

they  are   interested    to  misrepresent.  Such   evidence    has   sometimes   been 

and  it  need  not  appear  affirmatively  said  by  American  courts  to  be  admis- 

that  the  declaration  was  made  in   re-  sible;    and    in    the   cases   from   New 

striction  of  or  against  their  own  rights.  Hampshire,  cited  by  the  defendant,  it 

And  in  Bartlett  v.  Emerson,  7   Gray,  seems  to  be  held  that  declarations  of 

174,  it  is  held,  that  to  be  admissible,  deceased  persons,  who,  from  their  sit- 

such    declarations    must    have    been  nation   appear  to  have  the  means  of 

made  by  persons  now  deceased,  while  knowledge,  and  who  have  no  interest 

in  possession  of  land  owned  by  them,  to  misrepresent  the   facts,  are  admis- 

and  in   the   act  of  pointing  out  their  sible  to  establish  private  boundaries, 

boundaries,  with  respect  to  such  bound-  althouoh  not  made  on  the  land.  Suiith 


aries,    and   when  nothing  appears  to 
show  an  interest  to  deceive  or  misrep- 
resent.    AVare  r.  Brookhouse,  7  Gray, 
454;  Flagg  v.  Mason,  8  Gray,  556. 
"  The  declarations  offered  and   rc- 


V.  Forrest,  49  N.  H.  230,  237;  (ireat 
Falls  Co.  V.  Worster,  15  N.  H.  412, 
437.  But  by  the  current  of  authority 
and  upon  the  better  reason,  such  evi- 
dence is  inadmissible  for  the  purpose 


jected  at  the  trial  do  not  come  within  of  proving  the  boundary  of  a   jjrivate 

the  exception  thus  defined  to  the  rule  estate,   where   such   boundary  is    not 

by  which  hearsay  is  excluded.     The  identical  with  another  of  a  jjublic   or 

decisive  objection  to  their  competency  quasi  public  nature.     1  Greenl.  Kv.   § 

is  that   they  do    not  appear  to   have  145;  1   riiil.    Ev.   (N.   Y.   cd.   1.H40), 

been  made  while  in  the  act  of  pointing  241,  242,  Cowen  &  Hill's  Notes;  Hall 

out  the  boundaries  on  the  declarant's  v.   Mayo,   1)7    Mass.   41(j."     Colt,  .1., 

land.     This  is  an  element  which  can-  Long  u.  Colton,  IHJ   Mass.  414.      iSeo 

'not  be  disregarded,   especially  when  Coylc  v.  Cleary,  IIG  Mass.  208,  where 

the  question  is  one  of  private  bound-  proof  was    admitted    that    adjoining 

ary.      The     declaration     derives    its  owners  had  erected  a  stone  wall  more 

force  as  evidence  from  the  fact  that  it  than  twenty   years  old  as   a  division 

accompanies  an  act  which  it  (lualifies  line.     Tliis,  however,  was  an   admis- 

or  gives  character  to.     The  declara-  sion   by  a  pre<lecessor  in  title,  and  on 

tion  is  then  a  part  of  the  act.  Without  this  ground  evidence, 

such  accompanyin"-  act,  the  declara-  ^  Ellicott   i'.    Pearl,    10    Pet.    412; 

201 


§  194.]  THE  LAW   OF   EVIDENCE.  [BOOK  I. 

§  193.  It  is  scarcely  necessary  to  add  that  declarations  offered 

to  establish  matters  of  general  interest    are  generally 

tiona  must   inadmissible,  if   it   appear  they  are   made  from   sym- 

be  ante  ■,  •  ,  «  .  ,      •  ->• 

litem  mo-  pathy  With  or  from  interest  in  any  pending  or  pro- 
''*"*■  jected  suit ;  ^  though  it  would  be  a  better  expression  of 

the  rule  to  say  that  inadmissibility  is  confined  to  declarations 
which  are  made  as  part  of  a  litigation,  and  which,  from  the 
nature  of  things,  cannot  prove  the  generality  of  a  reputation 
whose  want  of  generality  is  shown  by  the  very  trial  in  which 
they  were  uttered.  The  fact  that  they  were  uttered  in  a  con- 
test as  to  generality  excludes  them,  for  it  shows  that  the  gen- 
erality they  are  called  to  prove  is  a  generality  that  is  contested.^ 
It  is  plain,  however,  that  a  suit,  whose  existence  is  thus  to  ex- 
clude declarations,  must  be  a  suit  in  which  the  generality  of  the 
reputation  sought  to  be  set  up  is  specifically  at  issue.^ 

§  194.  Long  possession  cannot  be  proved  by  living  witnesses ; 
Ancient  and  to  prove  it  it  is  necessary  to  have  recourse  to  an- 
adm^ss^bfe    cient  documents  relating  to  such  possession.     Such  doc- 

to  prove  uments,  however,  must  be  thirty  years  old,  and  must 
ancient  '  .  .        . 

possession,  be  traced  to  the  proper  archives  or  deposita'ries.  No 
doubt,  ancient  documents,  as  well  as  modern,  may  be  forged. 
To  this,  however,  so  far  as  concerns  the  question  before  us,  there 
are  two  replies.  In  the  first  place,  while  documents  attested 
by  witnesses,  since  deceased,  have  been  forged,  the  fact  that 
there  is  a  possibility  of  such  falsification  is  an  objection  to  cred- 
ibility, but  not  to  competency.  In  the  second  place,  by  requir- 
ing that  the  document  should  be  taken  from  the  proper  deposi- 
tary, the  probability  of  falsification  is  greatly  diminished.  We 
find  this  test  applied  in  all  investigations  in  which  the  authen- 
Butmust  ticity  of  an  alleged  ancient  document  is  in  dispute, 
proper  cus^  ^lie  authenticity  of  the  Eikon  Basilike  is  conditioned 
todian.  upon  its  possessioii  by  custodians  to  whom  it  was  com- 
mitted by  Charles  I.*     The  authenticity  of  the  Codex  Flatoien- 

Bartlett   v.   Emerson,    7    Gray,    174;  §  185;   and   also  infra,  §   213,   as  to 

Clements  v.  Kyles,  13  Grat.  468.    See  qualifications  in  respect  to  pedigree. 
Shepherd  v.  Thompson,  4  N.  H.  213;         '^  See,  further,  infra,  §  213. 
Dibble   v.    Rogers,    13    Wend.    536;        8  Freeman  i'.  Phillips,  4  M.  &  Sel. 

Medley  v.  Williams,    7  Gill  &  J.  61;  497;  Gee  i-.  Ward,  7  E.  &  B.  509. 
Moore  v.  Davis,  4  Heisk.  540.  *  See  Dr.  C.  Wordsworth's  treatise 

^  See   authorities    grouped,   supra,  on  this  topic. 

202 


CHAP.  IV.]  ANCIENT   DOCUMENTS.  [§  194. 

sis,  on  which  rests  the  Scandinavian  claim  to  a  pre-Cohunbian 
discovery  of  America,  depends  in  a  large  measure  upon  the  as- 
sumption that  it  was  found  two  centuries  ago  in  the  archives  of 
the  Island  of  Flatoe.^  The  spuriousness,  on  the  other  hand,  of 
Napoleon's  alleged  exculpatory  dispatch  of  March  30,  1808,  to 
Murat,  is  inferred  from  the  fact  that  no  record  of  that  dispatch 
is  found  in  the  letter-books  or  records  of  the  time  in  which  it 
was  afterwards  claimed  to  have  been  issued. ^  The  same  test  is 
as  important  in  juridical  as  it  is  in  historical  inquiry.  Is  the 
authenticity  of  an  alleged  ancient  map  or  deed  disputed  ?  If  it 
can  be  shown  to  have  been  deposited,  near  the  time  of  its  alleged 
date,  in  the  proper  archives,  the  first  condition  of  its  admissibil- 
ity is  secured.  It  is  enough,  in  such  case,  to  entitle  a  document 
to  be  admitted  in  evidence,  to  show  that  it  bears  on  its  face 
marks  of  having  been  executed  at  least  thirty  years  since,  and 
that  it  comes  from  the  custodians  who  would  have  possessed  it  if 
it  were  genuine.^  Thus  checked,  recitals  in  deeds,  more  than 
thirty  years  old,  are  competent,  though  neither  party  claims 
under  such  deeds  to  prove  the  location  of  a  disputed  line.'*  So, 
also,  ancient  deeds  and  leases  are  admitted,  under  similar  con- 
ditions, as  declaratory  of  the  public  matters  contained  in  them.^ 
That  maps  can  be  so  used  will  be  elsewhere  seen  ;  ^  and  so  are 
ancient  court  rolls  and  other  documents.'^ 

1  See  Edinburgh  Review  for  Oct.  lets   v.  Mandlcbaum,  28   Mich.   521  ; 
1876,  p.  150.  Middleton    v.  Mass.   2    Nott  &   McC. 

2  See    Lanfrey's    Hist.   Napoleon,  55;  Johnson  v.  Shaw,  41  Tox.  428. 
III.  198.  *  Sparhawk  v.  Bullard,  1  Mete.  95; 

8  See  infra,  §§  668,  703,  733,  1359;  Morris  v.  Callahan,  105  ]\Iass.  129; 
Best's  Ev,§  499;  Malcomson  v.  O'Dea,  Hathaway  v.  Evans,  113  Mass.  264. 
10  H.  of  L.  Cas.  614;  Bishop  of  Meath  ^  Ciirzon  v.  Loniax,5  Esp.  60;  Brett 
V.  Winchester,  3  Binj?.  N.  C.  200;  r.  Beales,  INI.  &  M.  416;  Plaxton  v. 
Croufrhton  i;.  Blake,  12  M.  &  W.  205;  Dare,  10  B.  Sc  C.  17;  Anglesey  v. 
R.  V.  Mytton,  2  E.  &  E.  557;  Doe  v.  Hatherton,  10  M.  &  W.  218;  Beau- 
Roberts',  13  M.  &  W.  520;  Randolph  fort  v.  Sniitli,  4  Ex.  R.  4  71. 
i\  Gordon,  5  Price,  312;  Barr  v.  "  See  infra,  §  668. 
Gratz,  4  Wheat.  213;  Winn  v.  Pat-  '  Freeman  c.  Phillips.  4  M.  &  ."^ol. 
terson,  9  Pet.  675;  U.  S.  v.  Castro,  24  486;  Gee  v.  Ward,  7  E.  &  B.  500; 
How.  346;  Goodwin  v.  Jack,  62  Me.  Crease  c.  Barrett,  1  C,  M.  &  K.  919; 
414;  Jackson  v.  Luquere,  5  Cow.  221 ;  Evans  v.  Taylor,  7  A.  &  E.  626;  Daniel 
Hewlett  V.  Cock,  7  Wend.  371  ;  Crow-  r.  Wilkin,  7  Ex.  R.  429;  McCausland 
der  V.  Ho])kins,  10  Pai^e,  190;  Me-  r.  Flcniin<i,  63  Peiui.  St.  38;  Casey  r. 
Causland  v.  Fleniin<j:,  63  Penn.  St.  Inilues,  1  (Jill,  430.  See  Tolinan  r.  Ein- 
38  ;  Casey  v.  Iniloes,  1  Gill,  430;  Wil-  crson,  4  Pick.  160,  cited  iufru,  §  G43. 

203 


§  196.]  THE   LAW   OF    EVIDENCE.  [BOOK  I. 

§  195.  What,  however,  is  the  proper  depository,  reception 
from  which  gives  this  sanction  to  an  ancient  instrument?  On 
this  point  we  have  several  English  rulings.  On  the  one  hand, 
where  an  expired  lease  was  produced  from  the  custody  of  the 
lessor,  and  proof  was  given  that  he  had  received  it  from  a  former 
occupier  of  the  demised  premises,  who  had  paid  for  several  years 
the  precise  rent  reserved  by  it,  and  who,  subsequently  to  the  ex- 
piration of  the  term,  had  procured  it  from  two  strangers  who 
claimed  no  interest  in  it,  the  court  held  the  deed  to  be  admissi- 
ble, without  proof  in  what  manner  it  had  come  into  the  hands  of 
these  strangers  ;  because,  by  the  act  of  giving  it  up  to  the  occupier, 
they  admitted  his  right  to  the  possession  of  it,  and  were  conse- 
quentl}'^  presumed  to  have  held  it  on  his  account.^  So  the  poor- 
house  of  a  union  has  been  held  not  to  be  an  unsuitable  depository 
for  the  documents  of  any  parish  within  the  union.^  An  un- 
proved will  has  been  received  when  taken  from  the  custody  of 
a  younger  son,  a  devisee  under  the  will.^  Again,  a  case  stated 
for  counsel's  opinion  by  a  deceased  bishop,  respecting  his  right 
of  presentation  to  a  living,  has  been  admitted  against  a  subse- 
quent bishop  of  the  same  see,  on  a  question  touching  the  same 
right,  though  the  paper  was  not  found  in  the  public  registry  of 
the  diocese,  but  among  the  private  family  documents  of  tlie  de- 
scendants of  the  former  bishop.* 

§  196.  An  old  book  of  a  collector  of  tithes,  so  it  has  been 
ruled,  may  be  received  when  taken  from  the  custody  either  of 
the  executor,  or  the  successor,  of  the  incumbent,  or  of  the  suc- 
cessor of  the  collector.^  So,  where  a  mortgagee  in  fee  brought 
an  action  of  ejectment,  and  the  defendant's  case  was,  that  the 
mortgagor,  his  father,  had,  previously  to  the  mortgage,  conveyed 
the  estate  to  trustees  in  settlement,  reserving  to  himself  only  a 
life  interest,  the.  court  permitted  the  son  to  put  in  the  deed  of 
settlement,  it  being  more  than  thirty  years  old,  though  it  was 
produced  from  among  the  papers  of  his  late  father,  against  whom 
its    provisions  were   intended   to    operate ;    and   though  it  was 

1  Rees  V.  Walters,  3  M.  &  W.  527.  Andrew  v.  Motley,  12  C.  B.  (N.  S.) 
See  Slater  v.  Hodgson,    9    Q.  B.  727;     526. 

Bullen  V.  ]\Iichel,  2  Price,  399;  R.  v.  *  Meath  U.Winchester,  3  Bing.  (N. 

Mytton,  2  E.  &  E.  557.  C.)  183. 

2  Slater  v.  Hodgson,  9  Q.  B.  727.  6  jbij.;  Jones  v.  Waller,  3  Gwill. 
*  Doe  V.  Pearce,  2  M.  &  Rob.  240;  346. 

204 


CHAP.  IV.] 


ANCIENT   DOCUMENTS. 


[§  197. 


strongly  urged  that  the  trustees  or  their  representatives  were 
the  parties  entitled  to  its  custody ;  and  the  more  especially  so,  as 
by  the  deed  having  been  permitted  to  remain  with  the  settlor, 
he  had  been  enabled  to  practise  a  fraud  on  the  mortgagee.  ^ 

§  197.  Yet,  on  the  other  hand,  there  must  be  proof  that  will 
positively  trace  the  document  to  a  custody  which  would  be 
proper  and  natural  for  it  at  the  time  of  its  inception.  If  the 
proof  fall  short  of  this,  the  document  cannot  be  received.  Thus, 
where  the  grandson  of  a  former  rector  of  a  parish,  produced  a 
book  purporting  to  have  been  kept  by  such  rector,  but  the  book 
was  not  further  traced  to  the  grandfather  ;  it  was  held  that  the 
book  was  not  sufficiently  proved.^  Terriers  which  have  been 
found  among  the  papers  of  a  mere  landholder  in  the  parish,^ 
have  in  like  manner  been  rejected,  because  the  legitimate  depos- 
itory for  such  documents  would   be  either   the  registry  of   the 

1  Doe  V.  Samples,  8  A.  &  E.  151;  expect  that  they  should  have  been  in 

3  N.  &  P.  254,  S.  C.     See,  also,  Ber-  the   place    where   they   are   actually 

tie   V.  Beaumont,    2    Price,  307;  Ld.  found;  for  it  is  obvious,  that,  while 

Trimlestown     v.    Kemmis,    9    CI.    &  there  can  be  only  one  place  of  deposit 

Fin.  774,  775;  Taylor's  Evidence,  §  strictly  and  absolutely  proper,  there 
597. 


On  this  topic  the  remarks  of  Tin- 
dal,  C  J.,  in  the  house  of  lords,  in  the 
case  of  ^leath  y.  Winchester,  131;  3 
Bing.  N.  C.  200-202;  10  Bligh,  4G2- 
464,  5.  C,  have  been  so  often  cited 
as  to  become  elementary  authority. 


may  be  many  and  various,  that  are 
reasonable  and  probable,  though  differ- 
ing in  degree  ;  some  being  more  so, 
some  less;  and  in  those  cases  the  prop- 
osition to  be  determined  is,  whether 
the  actual  custody  is  so  reasonably 
and  probably  to  be  accounted  for,  that 


"Documents,"  said  this  excellent  it  impresses  the  mind  with  the  con  vic- 
judge,  "  found  in  a  place  in  which,  tion  that  the  instrument  found  in  such 
and  under  the  care  of  persons  with  custody  must  be  genuine.  That  such 
whom  such  papers  might  naturally  is  the  character  and  description  of 
and  reasonably  be  expected  to  be  the  custody,  which  is  held  suflieiently 
found,  are  precisely  in  the  custody  genuine  to  render  a  document  aduiis- 
which  gives  authenticity  to  documents  sible,  appears  from  all  the  ea>-es  "  See, 
found  within  it;  for  it  is  not  necessuri/  also.  Doe  v.  Samples,  8  A.  &  K.  154, 
that  they  should  be  found  in  the  best  and  per  Patteson,  J.;  Doe  v.  Phillips,  8  Q. 
most  proper  place  of  deposit.  K  docu-  B.  158. 
ments  continue  in  such  custody,  there 
never  would  be  any  question  as  to 
their  authenticity;  but  it  is  when  doc- 
uments are  found  in  other  than  their 
proper  place  of  deposit  that  the  inves- 
tigation commences,  whether  it  was  kins  v.  Ld.  Wiiloughby  De  Broke,  4 
reasonable  and  natural,  under  the  cir-  Wood's  Decrees,  424. 
cumstances  in  the  particular  case,  to 

205 


2  Randolph  v.  Gordon,  5  Price, 
312. 

8  Atkins  V.  Ilatton,  2  Anstr.  38G  ; 
3  Gwiil.  1406  ;  4  Wood's  Decrees, 
410;  2    Eag.   &    Y.   403,   N.   C;  At- 


§  198.]  THE    LAW   OF   EVIDENCE.  [BOOK  I. 

bishop,  the  archdeacon,  or  the  church  chest.^  The  same  reason 
has  led  to  the  rejection  of  the  registers  of  burials  and  baptisms 
required  by  the  Act  of  52  G.  3,  c.  146,  §§  1,  5,  to  be  kept  by 
the  clergyman  of  the  parish  either  at  his  own  residence  or  in  the 
church,  when  such  registers  have  been  produced  from  the  house 
of  the  parish  clerk.^  The  courts  have  also,  on  the  same  principle, 
rejected  a  manuscript  found  in  the  Herald's  Office,  enumerating 
the  possessions  of  a  dissolved  monastery ;  ^  a  curious  manuscript 
book  entitled  the  "  Secretum  Abbatis,"  preserved  in  the  Bod- 
leian Library  at  Oxford,  and  containing  a  grant  to  an  abbey ;  ^ 
an  old  grant  to  a  priory,  brought  from  the  Cottonian  MSS.  in 
the  British  Museum ;  ^  and  two  ancient  writings,  purporting 
respectively  to  be  an  endowment  of  a  vicarage  and  an  inspeximus 
of  the  endowment  under  the  seal  of  a  bishop,  both  of  which  had 
been  purchased  at  a  sale  as  part  of  a  private  collection  of  man- 
uscripts.^ In  all  cases  of  this  class  it  is  for  the  court  to  deter- 
mine, as  a  preliminary  question,  whether  the  document  came 
from  the  proper  quarter. 

§  198.  Supposing  the  depository  to  be  unquestionably  suita- 
ble, must  the  custodian  be  sworn,  when  the  document  on  its  face 
purports  to  belong  to  the  party  who  tenders  it  in  evidence? 
There  are  some  judicial  indications  which  would  favor  the 
negative  of  this  view ;  "*  but  the  better  opinion  is,  that  even 
when  the  proper  custodian  of  the  document  is  the  party  offering 
it,  the  fact  of  custody  must  be  proved  as  any  other  fact  necessary 
to  make  out  a  case.^  When  there  is  no  proper  custodian  for  a 
document  remaining,  then  the  document  may  be  received  from 
the  hands  of  any  person  to  whom  such  document  may  naturally 
have  fallen.^     Thus  proprietary  books,  in  the  State  of   Maine, 

1  Armstrong  v.  Hewett,  4  Price,  ''  R.  v.  Ryton,  5  T.  R.  259  ;  R.  v. 
216.  Neverthong,  2  M.  &  Sel.  337. 

2  Doe  V.  Fowler,  14  Q.  B.  700.  8  Evans  v.  Rees,  10  A.  &  E.  151. 
8  Lygon  V.  Strutt,  2  Anstr.  601.  See  Earl  v.  Lewis,  4  Esp.  1;  Doe  v. 
*  Michell  V.  Rabbetts,  cited  3  Taunt.     Keeling,  11  Q.  B.  884. 

91.  '  Monumoi  Great  Beach  v.  Rogers, 

6  Swinnerton  v.  M.   of  Stafford,  3  1   Mass.   159  ;    Rust    v.    Mill    Co.   6 

Taunt.  91.  Pick.    165  ;    Tolman  v.   Emerson,    4 

6  Potts  V.   Durant,  3  Anstr.  789  ;  Pick.    IGO  ;   King  v.   Little,   1    Cush. 

2  Eag.  &  Y.  432,  S.  C.    See,  also,  il-  440. 

lustration  of  same  distinction,  supra, 

§56. 

206 


CHAP.  IV.]  ANCIENT   DOCUMENTS.  [§  199. 

bearing  strong  internal  proof  of  genuineness,  have  been  received 
from  the  custody  of  the  librarian  of  the  Maine  Historical  Soci- 
ety, there  being  no  remaining  natural  custodian.^ 

§  199.  Must  it  be  proved,  in  order  to  admit  such  documents, 
that  acts  (g.  g.  taking  of  possession)  were  coinci-  Coincident 
dently  done  under  them  ?  So  it  has  been  zealously  P°^*'^**'o'i 
maintained ;  ^  but  to  require  such  preliminary  proof  is  needed, 
to  deny  the  admissibility  of  the  evidence  to  v^'hich  such  proof  is 
preliminary.  Ancient  documents  are  admitted,  if  taken  from 
the  proper  depository,  on  the  assumption  that  living  memory 
does  not  go  back  to  the  period  to  which  the  ancient  document 
relates.  If,  however,  living  memory  does  go  back  to  the  period 
to  which  the  document  relates,  so  far  as  to  be  able  to  prove 
coincident  possession,  then  the  reason  for  the  admission  of  the 
document  fails  ;  or  if,  to  prove  coincident  possession,  a  second 
ancient  document  is  adduced,  the  case  is  no  ways  helped ; 
since,  to  sustain  the  second  ancient  document,  coincident  pos- 
session would  still  have  to  be  proved.  Hence,  it  lias  been  prop- 
erly ruled  that  the  absence  of  proof  of  coincident  possession 
goes  not  to  admissibility  but  to  weight.^  So  where  in  order 
to  prove   a  prescriptive   right   of    fishery  as   appurtenant  to  a 

^  Goodwin  v.    Jack,    62   Me.   416.  long  known   as    '  Pejepscot   Proprie- 

In    this   case,    Dickerson,    J.,    said :  tors.'     To  require  such  evidence,  or 

"  The  books  offered  in  evidence  pur-  even  parol  testimony  in  the  ordinary 

porting  to   be    '  Pejepscot   Records,'  way,  that  the  books  ollered  are  what 

cover  a  period  of  more  than  a  hun-  they  purport  to  be,  would  be  practi- 

dred  years,  and  contain  strong  inter-  cally   to  exclude   these   records   from 

nal    evidence    of    their    own    verity,  being   used    as  evidence  in   any  case 

There  is  no  evidence  to  impeach  their  affecting   the  title  to  any  land   origi- 

gonuineness,    or   of    the    present    ex-  nally  derived  from  those  proprietors, 
istence  of  the  proprietary,  or  of  any         "  Under    these   circumstances,    we 

person   authorized   to  represent  it,  or  think  that  the  books  offered  are  to  be 

having  any  proprietary  interest  there-  regarded  as  proving  themselves  to  be 

in.     Previous  to  the  decease  of  John  what  they  purport  to  be,  —  'Pejepscot 

Me  Keen,  of  Brunswick,  they  were  in  Records,' —  and  that  they  are  com- 

his  possession,  he  claiming  title  to  cer-  petent  evidence  of  the  doings  of  the 

tain  lands  under  the   '  Pejepscot   Pro-  '  Pejepscot  Proprietors,'  without  p.irol 

prietors.'     At   the   time   of  the   trial  or  other  eviilenee  of  their  original  or- 

they   were   in    the   possession  of    the  ganization,  or  the  regularity  of  their 

librarian  of  the  Maine  Historical   So-  subsecpient  meetings." 
ciety.     Time  has  swept  away  all  who         ^  See  fully  for  eases  infra.  §  7.J.'}. 
could    have    testified    to   the    original         ^  Malcomson  i-.  O'Dea,  10  II.  of  L. 

organization    of    the   association,    so  Cas.  614. 

207 


§  200.]  THE    LAW    OF   EVIDENCE.  [bOOK  I. 

manor,  ancient  licenses  to  fisli  in  the  locus  in  quo,  which  ap- 
peared on  the  court  rolls,  and  were  granted  by  former  lords  in 
consideration  of  certain  rents,  were  tendered  in  evidence,  Mr. 
Justice  Heath,  after  argument,  held  that  they  were  admissible 
without  any  proof  of  the  rents  having  been  paid ;  but  he  added 
that,  "  to  give  them  any  zveight,  it  must  be  shown  that  in  latter 
times  payments  had  been  made  under  licenses  of  the  same  kind, 
or  that  the  lords  of  the  manor  had  exercised  other  acts  of  own- 
ership over  the  fishery,  which  had  been  acquiescecl  in."  ^  So, 
when  it  became  necessary  to  show  that  the  land  in  question  had 
been  part  of  tlie  estate  of  the  lessor's  ancestor.  Sir  William 
Windham,  and  when,  in  order  to  establish  this  fact,  a  document 
was  produced  from  the  muniment  room  of  the  property  inher- 
ited from  Sir  William,  which  appeared  to  be  a  counterpart  of  a 
lease  of  this  land  made  by  him,  but  it  purported  to  be  executed 
only  by  the  lessee,  and  no  proof  was  given  of  actual  possession 
under  it ;  the  court  of  queen's  bench,  after  consulting  with  some 
of  the  other  judges,  held  that  this  deed  was  admissible  in  evi- 
dence.2  And  again,  in  a  case  relied  on  in  the  argument  of  that 
last  cited,  where  the  action  was  brought  to  try  the  title  to  the 
bed  of  a  river,  after  proof  of  a  grant  from  Henry  VHL,  two 
counterparts  of  leases  were  produced  from  the  duke's  muniment 
room,  comprehending  the  soil  in  question.  No  payment  by  a 
tenant  was  proved,  nor  any  modern  act  of  ownership ;  but  Lord 
Denman  admitted  the  instruments  as  comings  from  the  riffht 
custody,  observing  that  no  circumstance  in  the  case  threw  sus- 
picion upon  them,  and  that  "  the  absence  of  other  kinds  of  proof 
was  mere  matter  of  observation."  ^ 

§  200.  In  matters  of  general  interest,  it  is  settled,  a  verdict  or 
Verdicts       a  judgment,  in  all  cases  in  which  reputation  is  evidence, 
ments  ad-     IS  admissible  in  subsequent  suits  to  affect  even  strangers 
to  the  original  suit,  in  all  cases  in  which  such  verdict 
or  judgment  went  directly  to  the  question   of  reputa- 

^  Rogers  ?;.  Allen,  1  Camp.  309-311.  terden  ;  Tisdall  v.  Parnell,  14  Ir.  Law 

See  Malcomson  v.  O'Dea,   10    H.  of  R.  N.  S.  123;  Doe   v.  Passingliam,  2 

L.  Cas.  593.  C.  &  P.  444,  per  Burrough,  J.;  Ran- 

2  Doe    V.    Pulman,   3    Q.    B.    622,  cliffe  i;.  Parkyns,  6  Dow,  202,  per  Ld. 

626.     See,   also,   Clarkson    v.   Wood-  Eldon;    McKenire    v.  Fraser,  9    Ves. 

house,  5  T.  R.  413,  n.,  per  Ld.  Mans-  5  ;  Taylor's  Ev.  §  600,  from  which  the 

field;  3  Doug.   189,   S.    C. ;  Brett  v.  above  references  are  taken. 

Beales,  M.  &  M.   418,  per   Ld.  Ten-  s  Bedford  y.  Lopes,  cited  3  Q.  B.  623. 
208 


niissible  to 
prove  repu- 
tation. 


CHAP.  IV.]  PEDIGREE.  [§  201. 

tion.i  Even  a  verdict  without  judgment  is  for  this  purpose 
admissible  ;  ^  and  a  verdict  taken  in  an  inferior  court,  provided 
the  proceedings  be  regularly  and  fairly  conducted,  is  as  admis- 
sible as  a  verdict  taken  in  a  superior  court.^  But  an  award  in 
a  suit  between  strangers  has  been  held  inadmissible  for  the 
purposfe  above  mentioned  ;  *  and  so  have  interlocutory  orders  in 
chancery.^ 

V.  EXCEPTION  AS  TO  PEDIGREE  AND  RELATIONSHIP ;  BIRTH,  MARRIAGE, 

AND    DEATH. 

§  201.  Pedigree,  from  the  nature  of  things,  is  open  to  proof 
by  hearsay,  in  respect  to  all  family  incidents  as  to  which   Hearsay 
no  living  witnesses  can  be  found.     If  what  has  been   asTopedi- 
handed  down  in  families  cannot  be  in  this  way  proved,   sree. 
pedigree  could  not  in  most  cases  be  proved  at  all.     Nor  is  such 
tradition,  in  its  best  sense,  open  to  the  objections  applicable  to 
hearsay.     A.,  called  as  a  witness  to  pedigree,  may  indeed  say, 
"  B.    told   me   this."      But   pedigree   testimony   usually   takes 
another  shape.     It  is   not,  "  B.  told  this,"  but,  "  such  was  the 
understanding  of  the  family."     The  constitution  of  a  family  may 
become  a  matter  of  immediate  perception.     A.,  B.,  C,  and  D. 
are  brought  up  as  brothers  in  the  same  household.     If  any  one 
says  to  A.,  "  B.  is  your  brother,"  A.  would  not  regard  such  an 
announcement  as  any  more  disclosing  a  fact  to  him  than  would 
the  announcement  to  him  that  he  is  a  human  being.     That  B. 
is  his  brother,  is  one  of  the  conditions  of  his  family  existence. 
He  fits  into  a  family  of  which  B.  is  a  member,  in  the  same  way 
that  one  stone  fits  into  an  arch  of  which  another  stone  is  part. 
The  position  of  the  one  presupposes  the  position  of  the  other.* 
As  to  remoter  relations  the  same  reasoniug  applies,  though  with 
diminishing  force.     The  recognition  of  such  relations  forms  part 
of  a  family  atmosphere  ;  the  existence  of  such  relationship  con- 

1  Infra,    §§    820-23,   827,   828-33.;         »  Ibid. 

Reed  V.  Jackson,   1  East,  355;  Brisco  *  Evans  v.  Rcos,  10  A.  &  E.    151; 

D.  Loniax,  8  A.  &  E.  211;  Evans  i'.  Wenman    v.  Mackenzie,    5    E.    &    B. 

Rees,   10  A.  &  E.  256  ;  Pim  v.  CurcU,  417. 

6  M.  &  VV.  266.  *  Pim  t;.    Curcll,  6    M.  &  W.  234, 

2  Brisco  V.  Lomex,  8  A.  &  E.  198.  265. 

See   Carnavon   v.  Villebois,   13   M.  &         *  Sec  Mansfield,  C.  J.,  in  4  Camp. 
W.  313;   R.  i;.  Bierlow,  13  Q.  B.  933.     416. 

VOL.  I.  14  209 


§  202.] 


THE   LAW    OF   EVIDENCE. 


[book  I. 


stitutes  the  family.  A  family,  in  this  sense,  is  an  object  of  im- 
mediate, instead  of  mediate  perception.  To  say  that  "  A.  is  a 
brother  or  a  cousin,  or  an  uncle  or  aunt,"  is  not  hearsay  but  pri- 
mary evidence.  But  the  recognition  of  pedigree  is  not  hmited 
to  such  conditions.  Even  when  there  is  no  family  consensus  to 
be  appealed  to,  what  is  said  by  one  member  of  the  family  to 
another  as  to  pedigree  may  be  received  to  prove  such  pedigree. 
Hence  it  is  admissible  for  A.  to  prove,  with  the  limitations  here- 
after expressed,  what  was  told  him  by  deceased  relatives  as  to 
family  relations.^  Nor  does  the  fact  that  family  registers  exist 
exclude  proof  of  declarations  of  deceased  members  of  the  family .^ 
Even  ex  parte  affidavits,  taken  ante  litem  motam^  have  been  re- 
ceived for  this  purpose.^ 

§  202.  To  the  admissibility  of  declarations  when  offered  as 
Relation-  authoritative  in  pedigree,  it  is  essential  that  they  should 
sarv  to*ad-  ^6  made  by  lawful  relatives.  Thus,  the  declarations  of 
missibihty.    deceased  servants  and   intimate   acquaintances  are  re- 


1  Greaser.  Barrett,  1  C.,M.  &R. 
928;  V^owles  v.  Young,  13  Ves.  Jr. 
140;  Crouch  v.  Hooper,  1  Ex.  255; 
Hubbard  v.  Lees,  L.  R.  1  Ex.  255; 
Crispin  v.  Doglioni,  32  L.  J.,  P.  &  M. 
109;  Monkton  v.  Atty.  Gen.  2  R.  & 
M.  147;  Davis  v.  Wood,  1  Wheat.  6  ; 
Banert  v.  Day,  3  Wash.  C.  C.  243  ; 
Chirac  v.  Reinecker,  2  Pet.  621;  Elli- 
cott  V.  Pearl,  10  Pet.  412;  Jewell  r. 
Jewell,  17  Pet.  213;  1  How.  219; 
Blackburn  v.  Crawford,  3  Wall.  175; 
Secrist  v.  Green,  3  Wall.  744;  Gaines 
V.  New  Orleans,  6  Wall.  642;  Dus- 
sert  V.  Roe,  1  Wall.  Jr.  39;  Mooers  v. 
Bunker,  29  N.  H.  420;  Webb  v. 
Richardson,  42  Vt.  465  ;  Mason  v. 
Fuller,  45  Vt.  29 ;  Chapman  v.  Chap- 
man, 2  Conn.  101;  Jackson  v.  Cooley, 
8  Johns.  R.  128;  Jackson  v.  Browner, 
18  Johns.  R.  37 ;  Douglass  v.  San- 
derson, 2  Dall.  116;  Winder  v.  Little, 
1  Yeates,  152;  Watson  v.  Brewster,  1 
Penn.  St.  381;  Shuraan  v.  Shuman, 
27  Penn.  St.  90;  Am.  Life  Ins.  Co.  v. 
Rosenagle,  77  Penn.  St.  507  ;  State 
V.  Greenwell,  4  Gill  &  J.  407;  Jones 
210 


V.  Jones,  36  Md.  447;  Cuddy  v. 
Brown,  78  111.415;  Stocktons.  Wil- 
liams, Walk.  (Mich.)  120;  Morgan  v. 
Purnell,  4  Hawks,  95  ;  Cowan  v.  Hite, 
2  A.  K.  Marsh.  238 ;  Speed  v.  Brooks, 
7  J.J.  Marshall,  119;  Saunders  v. 
Fuller,  4  Humph.  516;  Eaton  v.  Tall- 
madge,  24  Wise.  217;  Anderson  v. 
Parker,  6  Cal.  197.  See  Carnes  v. 
Crandall,  10  Iowa,  377. 

2  Clements  v.  Hunt,  1  Jones  L. 
400. 

8  Hurst  V.  Jones,  Wall.  Jr.  373. 

"  Hearsay  is  good  evidence  to  prove 
who  is  my  grandfather,  when  he  mar- 
ried, and  what  children  he  had,  &c., 
of  which  it  is  not  reasonable  to  pre- 
sume I  have  better  evidence.  So,  to 
prove  my  father,  mother,  cousin,  or 
other  relation  beyond  the  sea  dead; 
and  the  common  reputation  and  belief 
of  it  in  the  family  gives  credit  to  such 
evidence."  Bull.  N.  P.  294,  cited  in 
note,  15  East,  294;  Powell's  Evidence, 
4th  ed.  17  7. 

As  to  the  danger  of  placing  too 
great  reliance  on  this  species  of  evi- 


CHAP.  IV.]  PEDIGREE.  [§  204. 

jected,^  even  though  coming  under  the  head  of  dying  declara- 
tions,2  nor  are  the  declarations  of  illegitimate  relations  re- 
ceived.^ "  The  la^y  resorts  to  hearsay  of  relations  upon  the 
principle  of  interest  in  the  person  from  whom  the  descent  is  to 
be  made  out ;  and  it  is  not  necessary  that  evidence  of  consan- 
guinity should  have  the  correctness  required  as  to  other  facts. 
If  a  person  says  another  is  his  relative  or  next  of  kin,  it  is  not 
necessary  to  state  how  tJie  consanguinity  exists.  It  is  sufficient 
that  he  says  A.  is  his  relation,  without  stating  the  particular  de- 
gree, which  perhaps  he  could  not  tell  if  asked.  But  it  is  evi- 
dence, from  the  interest  of  the  person  in  knowing  the  connections 
of  the  family  ;  therefore,  the  opinion  of  the  neighborhood  of 
what  passed  among  the  acquaintances  will  not  do."  *  But  the 
declarations  by  a  deceased  husband  as  to  his  wife's  legitimacy  are 
admissible,  as  well  as  those  of  her  blood  relations.^ 

§  203.  Admissibility  has  been  held  not  to  extend  as  far  as  to 
statements  made  by  a  wife's  father.^  And  a  court  has  refused 
to  admit  the  declarations  of  one  brother,  that  a  deceased  brother 
had  an  illegitimate  son.^  But  legitimacy  may  be  so  established  ;  ^ 
and  the  declarations  of  a  deceased  father,  that  a  son  is  illegitimate, 
have  been  received  on  the  issue  of  legitimacy.^  The  better  opin- 
ion is  that  a  party's  declarations,  that  he  is  himself  illegitimate, 
are  inadmissible,  unless  it  be  against  himself  and  his  successors  as 
to  title  acquired  subsequently  to  the  declarations.^^ 

§  204.  It  has  been  also  ruled  ^^  that  the  declaration  of  a  de- 
ceased woman,  of  statements  made  by  her  former  husband,  that 
his  estate  would  go  to  J.  F.,  and  then  to  J.  F.'s  heir,  were  ad- 

dence,  see  the  juclgmentof  Lord  Rom-  ''  Crispin  v.  Doglioni,  3  Sw.  &  Tr. 

illy   in    Crouch   v.  Hooper,   16  Beav.  44,     Infra,  §  216. 

182;  Powell's  Evidence,  4th  ed.  174.  «  Qaines  v.  New  Orleans,  G   Wall. 

1  Johnson  v.  Lawson,  9  Moore,  183.  642.    Infra,  §§  208-216. 

2  Doe  V.  Ridgway,  4  B.  &  Aid.  53.  »  Barnuni  v.  Barnuni,  42  Md.  201. 
8  Doe  V.  Barton,  2  M.  &  R.  28.  See  Sec  infra,  §  216. 

Doey.  Davies,  lOQ.  B.  314;  Powell's  ^o  See,   as  tending  to  this  conclii- 

Evidence,  4th  ed.  175;  and  see  fully,  sion,  R.  v.  Rishworth,  2  Q.  B.  487  ; 

infra,  §  21G.  l>ykc  v.  Williams,  2  Sw.  &  Tr.  491; 

*  Per    Lord     Erskine,    Vowles     v.  Hilchins  r.   Eardley,  L.   R.,  P.  &   D. 

Young,  13  Ves.  14  7.  248;  Cooke  r.   Lloyd,  Pea.   Ev.  App. 

5  i^id.  x.wiii. 

«  Shrewsbury  Peerage,  7  II.  of  L.  '»  Doe  v.  Randall,  2  M.  &  P.  20. 

Cas.  23.  2^^ 


§  205.]  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

missible  to  show  the  relationship  of  the  lessor  of  the  plaintiff  to 
J.  F.  "  Consanguinity,  or  affinity  by  blood,  therefore,"  said 
Best,  C.  J.  "is  not  necessary,  and  for  this  obvious  reason,  that 
a  party  by  marriage  is  more  likely  to  be  informed  of  tiie  state  of 
the  family  of  which  he  is  to  become  a  member,  than  a  rehition 
who  is  only  distantly  connected  by  blood  ;  as  by  frequent  con- 
versations, the  former  may  hear  the  particulars  and  characters  of 

branches  of  the  family  long  since  dead The  declarations 

of  deceased  persons  must  be  taken  with  all  their  imperfections, 
and  if  they  appear  to  have  been  made  honestly  and  fairly,  they 
are  receivable.  If,  however,  they  are  made  post  litem  motam^ 
they  are  not  admissible,  as  the  party  making  them  must  be  pre- 
sumed to  have  an  interest,  and  not  to  have  expressed  an  unprej- 
udiced or  unbiased  opinion."  "  There  seems,"  says  Parke,  B., 
"  to  be  no  limitation  in  the  rule  as  to  blood  relations  ;  but  with 
regard  to  relationship  by  affinity  it  is  different ;  it  seems  to  be 
confined  to  declarations  by  a  husband  as  to  his  wife's  relations. 
It  is  for  the  judge* to  decide,  as  a  question  precedent  to  the  ad- 
mission of  the  evidence,  whether  the  declarant  has  been  suffi- 
ciently proved  to  have  been  connected  by  consanguinity  or  affin- 
ity to  the  family  in  question ;  and  it  makes  no  difference  that 
the  legitimacy  of  the  declarant  happens  to  be  also  the  only  ques- 
tion in  issue."  ^  But  the  qualification  as  to  the  wife's  declara- 
tions is,  as  we  will  see,  abandoned ;  it  being  now  held  that  the 
statement  of  a  wife  as  to  her  husband's  family,  and  that  of  a 
husband  as  to  his  wife's  family,  stand  upon  the  same  footing.^ 

§  205.  Common  reputation,  in  a  family  connection,  as  to  who 
Common  ^^®  members  of  a  family,  is  therefore  admissible,  when 
reputation    no  Superior  evidence  is  attainable,  or  in  connection  with 

receivable  .  .  ^ 

for  same  sujDerior  evidence,  to  prove  pedigree,  legitimacy,  and 
purpose.       marriage.^     Such  reputation    may    amount  to  hearsay 

*  Parke,  B.,  in  Davies  v.  Lowndes,  2  Brock.  256;  Strickland  v.  Poole,  1 
7  Scott  N.  R.  185.  See  Doe  v.  Da-  Dall.  14;  Elliott  r.Peirsol,  1  Pet.  328; 
vies,  10  Q.  B.  314.  Waldron  v.  Tuttle,  4  N.  H.  371 ;  Jack- 

2  Per  Lord  St.  Leonards,  Shrews-  son  v.  Cooley,  8  Johns.  R.  128;  Copes 
bury  Peerage  case,  7  H.  L.  Cas.  23;  v.  Pearce,  7  Gill,  247;  Craufnrd  v. 
Powell's  Evidence, 4th  ed.  175.  Infra,  Blackburn,  17  Md.  49;  Ewell  v.  State, 
§  205.  6  Yerg.   364;  Flowers  v.   Haralson,  6 

«  Doe  r.  Griffin,  15  East,  293;  Shed-  Yerg.  494;  Morgan  v.  Purnell,  4 
den  V.  Atty.  Gen.  2  Sw.  &  Tr.  170;  30  Hawks,  95  ;  Johnson  v.  Howard,  1 
L.  J.,  P.  &  M.  217;  Stegall  v.  Stegall,     Har.  &  M.  281. 

212 


CHAP.  IV.]  PEDIGREE.  [§  206. 

upon  hearsay  ;  it  may  even  be  without  a  traceable  authoritative 
source  ;  but  it  is  not  for  this  reason  to  be  excluded,  unless  it 
should  appear  to  come  directly  from  straugers,  whose  information 
would  be  only  secondary.^  Thus,  the  declarations  of  a  deceased 
widow,  respecting  a  statement  which  her  husband  had  made  to 
her  as  to  who  his  cousins  were,  —  as  also  the  declaration  of  a 
relative,  in  which  he  asserts  generally  that  he  has  heard  what  he 
states,  —  have  been  received.  If  this  were  not  so,  the  main  ob- 
ject of  relaxing  the  ordinary  rules  of  evidence  would  be  frus- 
trated, since  it  seldom  happens  that  the  declarations  of  deceased 
relatives  embrace  matters  within  their  own  personal  knowledge.^ 
For  this  reason,  as  we  have  just  seen,  reputation  in  a  family, 
proved  by  the  testimony  of  a  surviving  member  of  it,  is  re- 
ceived.^ But  when  the  fact  of  marriage  is  directly  in  issue 
(g.  g.  in  prosecution  for  bigamy,  or  in  suits  where  the  imme- 
diate issue  in  the  case  is  whether  a  marriage  took  place),  proof 
of  general  reputation,  unsupported  by  other  proof,  is  inadmissible 
either  to  prove  or  disprove  the  marriage.*  It  is  otherwise,  how- 
ever, when  other  inferences  come  in  to  aid  such  proof.  Thus, 
evidence  that  a  person  went  abroad  when  a  young  man,  and 
according  to  the  repute  of  the  family  had  afterwards  died  in 
the  West  Indies,  and  that  the  family  had  never  heard  of  hi8 
being  married,  is  admissible  to  show  that  he  died  unmarried.^ 

§  206.  The  same  distinction  is  applied  where  a  suit  by  a  rever- 
sioner is  brought  against  a  tenant  pur  autre  vie,  in  which  case  the 
death  of  the  cestui  que  vie  cannot  be  proved  solely  by  reputation.^ 
Nor  can  we  extend  the  admissibility  of  this  evidence  to  determine 
questions  of  social  or  political  standing.'^  And  so  status  as  to 
race  cannot  be  established  by  such  proof.^ 

1  Slany  v.  Wade,  1  Myl.  &  Cr.  35.-;;  Davis  v.  Ormo,  36  Ala.  5  JO;  n.Midor- 
Monkton  v.  Atty.  Gen.  2  Rus.  &  M.  son  v.  Cargill,  31  Miss.  367;  Ilarnian 
1G5;  Robson  v.  Atty.  Gen.  10  CI.  &  v.  Harman,  16  111.  85;  Miner  v.  State, 
F.  500;  Shedden  v.  Atty.  Gen.  30  L.  58  111.  59.  See  supra,  §  81;  infra, 
J.,  Pr.  &  Mat.  217  ;  2  Sw.  &  T.  170.  §  224. 

2  Ibid.;  Doe  i'.  Randall,  2  M.  &  P.  ^  Doc  v.  Grirtin,  1  East,  293;  Pow- 
20.  ell's  Kvideiue,  tth  cd.  177. 

^  Doe  V.  GrifTin,  15  East,  293,  and  «  Fi;:;;  r.  WiMlderbiinic,  G  .Tiir.  218. 

cases  cited  supra  in  thjs  section.  ''  See  R.  r.  Erith,  H  East,  539. 

*  Shields  ('.  Bouclier.  1  De    (ic.\    &  »  Davis  v.  Wood,   1  Wheat,  (i;  Da- 

S.  40  ;  Westfield  v.  Warren,  3  Ilalst.  vis  c.  Forrest,  2  Cr.  C.  C.  23. 
249  ;  Carrie  v.  Cumining,  26  Ga.  C90  ; 

213 


§  208.]  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

§  207.  Sometimes  it  is  argued  that  the  declarations  of  deceased 
Evidence      members  of  a  family  are  admissible  for  this  purpose,  be- 

of  deceased  n-j.  2.    i        1.        ^      •      ^  •  i 

relatives  to  cause  \ve  are  all  interested  not  only  in  knowing  who  are 
ni^zed'^as  to  I'^h^tcd  to  US,  but  in  telling  truly  what  we  know.  The 
motive.  latter  assertion,  however,  may  be  subject  to  some  qual- 
ification. We  are  interested  in  telling  of  creditable,  but  not  of 
discreditable  relations.  Even  as  to  the  nearest  relationships,  a 
person  of  the  highest  integrity  and  truthfulness  may  seal  his  lips  ; 
while  distant  relationships,  sometimes  problematical,  approximate, 
even  to  the  most  impartial,  in  proportion  to  their  respectability. 
In  addition  to  this,  we  must  remember  that  such  evidence  "  is 
from  its  nature  very  much  exposed  to  fraud  and  fabrication  ;  and 
even  assuming  the  declaration,  inscription,  &c.,  correctly  reported 
by  the  medium  of  evidence  used,  many  instances  have  shown  how 
erroneous  is  the  assumption,  that  all  the  members  of  a  family, 
especially  in  the  inferior  walks  of  life,  are  even  tolerably  conver- 
sant with  the  particulars  of  its  pedigree."  ^  In  any  view  the  dec- 
laration must  not  be  in  the  declarant's  own  interest.  Thus  a 
statement  by  a  deceased  person,  who  had  been  married  twice, 
tending  to  invalidate  his  first,  and  thus  establish  his  second  mar- 
riage, has  been  rejected.^  But  it  is  no  objection  that  the  decla- 
rant was  in  pari  casu  with  the  party  tendering  the  evidence.^ 

§  208.  Pedigree,  if  we  are  to  understand  it  as  coextensive  with 
Such  dec-  ^^^  facts  to  prove  which  evidence  of  the  class  before  us 
larations      jg  admissible,  includes  not  merely  the  relationships  of  a 

tend  to        family,  but  the  dates  of  the  births,  deaths,  and  mar- 
dates  and        .  .  .  . 
places  of      nages  of  its  members,  when  the  object  of  such  evidence 

death,  and    is  to  trace  relationship.     For  this  purpose  the  declara- 

marriage.     tioiis  of  deceased  relatives  are  admissible.*     Legitimacy 

1  Best's  Ev.  §  498,  citing  the  judg-  M.  159  ;  Powell's  Evidence,  4th  ed. 
ment  of  the  master    of    the  rolls  in     182.     Infra,  §  214. 

Crouch   V.    Hooper,    16    Beav.    182;  *  See  cases  cited  supra,  §  202;  and 

Webb  V.  Haycock,  19  Beav.  342.     See  see  Herbert  v.  Tuckel,  T.  Raym.  84; 

State  V.  Greenwell,  4  Gill  &  J.  407  ;  Betty  v.  Nail,  6  Ir.  Law  K.  (N.  S.)  17; 

and,  particularly,  Cockburn,    C.    J.'s  Roe  u.  Rawlings,  7  East,  290;  Shields 

comments  on   Lady  Tichborne's  dec-  r.  Boucher,  1  De  Gex  &  S.  51;  Plant  i'. 

larations,   in  the  Tichborne  prosecu-  Taylor,  7  H.  &  N.  226;  Kidneys.  Cock- 

tion.  burn,  2  Russ.  &  M.  170  ;  qualifying  S. 

2  Plant  V.  Taylor,  7  H.  &  N.  211.  C.  2  Russ.  &  M.  168;  Scott  v.  Ratcliffe, 
8  Monckton    v.   Att.  Gen.  2    R.  &  5  Pet.  81  ;  Secrist  v.  Green,  3  Wall. 

214 


CHAP.  IV.] 


PEDIGREE. 


[§  208. 


is  necessarily  involved  in  the  scope  of  such  declarations.^  It  has 
been  however  doubted,  whether  the  place  of  birth  can  be  proved 
by  such  declarations.^  But  the  better  opinion  now  is  that  decla- 
rations are  admissible  to  show  such  place  where  genealogical 
questions  only  are  concerned.-^  It  is  conceded,  however,  in  set- 
tlement cases,  hearsay  proof  of  this  class  is  inadmissible.* 


744;  Morrill  v.  Foster,  33  N.  H.  379; 
Jackson  v.  Boneham,  15  Johns.  R.  226; 
Alexander  v.  Chamberlin,  1  Thomp. 
&  C.  ()00;  Watson  w.  Brewster,  1  Penn. 
St.  381;  American  Life  Ins.  v.  Rose- 
nagle,  77  Penn.  St.  507;  Du  Pont  v. 
Davis,  30  Wise.  170;  Clements  v.  Hunt, 
1  Jones  L.  400;  Carter  v.  Buchanan, 
9  Geo.  539;  Saunders  v.  Fuller,  4 
Humph.  516  ;  Primm  v.  Stewart,  7 
Tex.  1 78.  But  see,  as  limiting  the 
operation  of  such  declarations  to  the 
mere  fact  of  relationship,  excluding 
times  of  birth,  Albertson  v.  Robeson, 
1  Dall.  9;  Roe  v.  Neal,  Dudley  (Ga.), 
15. 

1  Gaines  v.  New  Orl.  6  Wall.  642; 
Barnum  v.  Barnum,  42  Md.  251.  Su- 
pra, §§  202,  203. 

2  Wilmington  v.  Burlington,  4  Pick. 
174;  Hall  v.  Mayo,  97  Mass.  416; 
Shearer  v.  Clay,  1  Litt.  (Ky.)  2G0; 
Robinson  v.  Blakely,  4  Rich.  (S.  C.) 
58G. 

8  Hood  V.  Beauchamp,  Hubb.  Ev.  of 
Success. 468;  Shields  v.  Boucher,  1  De 
Gex  &  S.  50;  Rishton  v.  Nesbitt,  2 
M.  &  Rob.  554;  Londonderry  v.  An- 
dover,  28  Vt.  416;  Union  o.  Plainfield, 
39  Conn.  563.  See  Adams  v.  Swan- 
sea, 116  Mass.  591. 

*  R.  V.  Eriswell,  7  T.  R.  707  ;  R.  v. 
Abergwilly,  2  East,  63  ;  R.  v.  Erith, 
8  East,  539. 

The  case  of  R.  v.  Erith,  8  East,  539 
(says  Mr.  Taylor,  §  582),  has  repeat- 
edly been  cited  as  an  authority  for  the 
proposition,  that,  even  in  a  strict  ques- 
tion of  pedigree,  hearsay  evidence  of 
locuUtji  —  or,  in  other  words,  the  dec- 
larations of  deceased  persons  respect- 


ing the  places  where  their  relatives 
were  born,  and  where  they  married, 
resided,  came  from,  went  to,  or  died  — 
cannot  be  received;  but  certainly,  as 
was  once  pointed  out  by  Vice-Chan- 
cellor  Knight  Bruce  (Shields  t'.  Bou- 
cher, 1  De  Gex  &  Sm.  50,  60),  the 
case  decides  no  such  point,  since  Lord 
Ellenborough  carefully  rested  his  judg- 
ment on  the  fact,  that  no  question 
whatsoever  of  relationship  was  in- 
volved in  the  inquiry.  Had,  there- 
fore, the  evidence  tendered  in  that 
case  been  required  for  any  genealog- 
ical purpose,  it  is  very  possible  that 
the  court  of  king's  bench  would  have 
arrived  at  a  different  conclusion  ;  and, 
indeed,  this  may  be  considered  as  a 
highly  probable  hypothesis,  inasmuch 
as  hearsay  evidence  of  locality  has  on 
several  occasions  been  admitted  to 
elucidate  matters  of  strict  pedigree. 
Thus,  in  Hood  r.  Lady  Beauchamp, 
where  the  question  was,  whether  A. 
B.,  an  ancestor  of  the  declarant  C, 
was  the  same  person  as  A.  B.,  a  black- 
smith, who  had  resided  at  X.,  a  decla- 
ration by  C.  that  his  ancestor  was  a 
blacksmith,  and  that  he  resided  at  X., 
was  received  in  evidence  by  Vicc- 
Chancellor  Shadwell. 

In  Shields  c.  Boucher,  I)c  Gex  & 
Sm.  40,  where  this  (juestion  was  fully 
discussed,  an  issue  had  been  <lirected 
out  of  chancery  to  ascertain  the  rela- 
tionship of  certain  parties;  and  on  the 
trial  all  tlie  cpiestions  put  in  the  text, 
except  the  last,  had  been  rejected  by 
Willie,  C.  J.  On  a  motion  lor  a  new 
trial,  K.  Bruce,  V.  C,  expressed  his 
opinion    that    the    chief   justice    was 

215 


§  210.]  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

§  209.  Particular  facts,  though  not,  as  we  have  seen,  admis- 
sible in  cases  of  boundaries,  are  admissible,  from  the  necessity 
of  the  case,  to  prove  pedigree.  "  In  cases  of  general  right,  which 
depend  upon  immemorial  usage,  living  witnesses  can  only  speak 
of  their  own  knowledge  to  what  passed  in  their  own  time  ;  and 
to  supply  the  deficiency,  the  law  receives  the  declarations  of  per- 
sons who  are  dead.  There,  however,  the  witness  is  only  allowed 
to  speak  to  what  he  has  heard  the  dead  man  say  respecting  the 
reputation  of  the  right  of  way,  or  of  common,  or  the  like.  A 
declaration  with  regard  to  a  particular  fact,  which  would  sup- 
port or  negative  the  right,  is  inadmissible.  In  matters  of  pedi- 
gree, it  being  impossible  to  prove  by  living  witnesses  the  re- 
lationships of  past  generations,  the  declarations  of  deceased 
members  of  the  family  are  admitted  ;  but  here,  as  the  reputa- 
tion must  proceed  on  particular  facts,,  such  as  marriages,  births, 
and  the  like,  from  the  necessity  of  the  thing,  the  hearsay  of  the 
family  as  to  these  particular  facts  is  not  excluded.  General 
rights  are  naturally  talked  of  in  the  neighborhood  ;  and  the 
family  transactions  among  the  relations  of  the  parties.  There- 
fore, what  is  thus  dropped  in  conversation  upon  such  subjects 
may  be  presumed  to  be  true."  ^ 

§  210.    Solemn  written   declarations,  when   not   self-serving, 

wrong  in  rejecting  the  evidence,  but  it  will  be  evidence;  not,  indeed,  that  he 

ultimately  became  unnecessary  to  de-  went  there,  or  that  any  person  of  his 

cide  the  point.  name  lived  in  that  neighborhood;  but 

In  this  case,  Vice-Chancellor  Knight  as  proving  a  tradition   in  the  family, 

Bruce,  in  a  very  elaborate  judgment,  that  they  once  had  relations  living  in 

intimated  a  strong  opinion,  that,  in  a  the  place  in  question,  which  tradition, 

controversy  merely  genealogical,  dec-  in   the  event  of  its   being  shown  by 

larations  made  by  a  deceased  person  other   evidence   that   persons   of    the 

as   to  where   he   or  his   family  came  same  name  had  resided  there,  might 

from,  "  of  what  place  "  his  father  was  be  important  as  a  mode  of  identifying 

designated,  and  what  occupation  his  those  persons  with  the  branch  of  the 

father  followed,  would  be  admissible,  family  alluded   to.     Rishton   v.   Nes- 

and  might  be  most  material  evidence  bitt,  2  M.  &  Rob.  554,  per  Rolfe,  B. 

for  tlie  j)nrpose  of  identifying  and  in-  So,  evidence  has  been  received  of  a 

dividualizing  the  person    and   family  fiimily  tradition,  that  a  particular  in- 

under    discussion.      Again,   if    it    be  dividual  died  in  India,  for  the  purpose 

necessary  to  show  that  a  family  had  of  connecting  that  individual  with  the 

relations   who   lived    at   a   particular  family  of  the  claimant.     Ibid.  556,  cit- 

place,  declarations  by  a  deceased  mem-  ing  Monk  v.  Att.  Gen.  2  Russ.  &  Myl. 

ber  of  the  family,  that  "  he  was  going  14  7-151. 

to  visit  his  relatives  at  that  place,"  ^  Mansfield,  C.  J.  4  Camp.  415. 
216 


CHAP.  IV.] 


PEDIGREE. 


[§  210. 


are  admissible  for  the  reasons   thus  stated.     Among  such  writ- 
ings   we    may  notice   a   provision  in  a  will  by  a  de-    Writings 
ceased  person  recognizing  or  ignoring  certain  persons    "eiau'x^e'ad^ 
as  his  children  ;  ^  a  description  in  a  will ;  ^  an  acknowl-    '""^'^''jie  to 

,  ,       T     1  .  , .  prove  pedi- 

edgment  of  a  deed  by  certain  persons  styling  them-  gree. 
selves  heirs  at  law ;  ^  a  recital  in  a  family  settlement ;  *  recitals 
of  consistent  antecedent  deeds  and  wills  ;  ^  and  generally  a  recital 
in  a  deed  executed  by  a  member  of  the  family.^  The  letters  of 
deceased  members  of  the  family  are  also  admissible  for  the  same 
purpose  ;  ">  and  so  of   answers  in  chancery,  ante   litem  motam  ; 

^  Tracy  Peer.  10  CI.  &  F.  100;  the  ground  that  the  grantor  in  it  was 
Robson  r.  Atty.  Gen.  10  CI.  &  F.  498;  not  shown  to  have  had  any  connec- 
tion with  the  land,  possession  or  oth- 
erwise, previous  to  the  date  of  the 
deed.  But  Bowser  v.  Cravcner,  de- 
cided in  1867,  6  P.  F.  Smith,  132, 
may  be  said  to  run  on  all-fours  with 
this  case,  and  there  the  same  doctrine 
was  held.  In  citing  Paxton  c.  Price, 
supra,  it  is  not  intended  to  assert  the 
2  VuUiamy  v.  Huskisson,  3  Y.  &  principles  there  decided,  as  applicable 
C.  Ex.  Ch.  82  ;  De  Roos  Peer.  2  Coop,  to  every  case,  modern  in  its  circum- 
540.  See  Doe  v.  Pembroke,  11  East,  stances.  In  that  case  the  deed  was 
504.  but   nine  years  old  when   it  was  re- 

'  Jackson  )'.  Cooley,  8  Johns.  R.  128.     ceived  in   evidence,   and  the   recitals 

*  Neal  r.  Wilding,  2  Str.  1151  ;  De     held  to  be  evidence  of  pedigree.     It 
Roos  Peer.  2  Coop.  541.  may  be  that  in  matters  of  very  recent 

^  Doe   V.  Phelps,  9  Johns.  R.  169  ;  occurrence,    where    the    evidence    of 

Doe  I?.  Campbell,  10  Ibid.  475  ;  Fuller  pedigree   is    easily    attainable,    cases 

V.  Saxton,  20  N.J.  L.  61.  may  arise  where  the  recitals  in  such 

*  Ilungate  v.   Gascoigne,   2    Coop,  a  recent  deed  would  not  be  entitled 


Hungatc  V.  Gascoigne,  2  Phil.  414  ; 
S.  C.  2  Coop.  414  ;  De  Roos  Peer.  2 
Coop.  .540;  Gaines  v.  New  Orleans, 
6  AVallace,  G42  ;  Shuman  v.  Shuman, 
27  Penn.  St.  90  ;  Caujolle  v.  Ferric, 
23  N.  Y.  91  ;  Pearson  v.  Pearson,  46 
Cal.  609  ;  Cowan  v.  Hite,  2  A.  K. 
Marsh.  238. 


407  ;  De  Roos  Peer.  2  Coop.  541  : 
Little  V.  '  Palister,  4  Green  1.  209  ; 
Paxton  V.  Price,  1  Yeates,  500  ;  Mur- 


to  the  weight  given  to  them  in  Paxton 
V.  Price.  But  the  present  case  is  one 
far  removed  from  the  border  line  of 


phy  V.  Lloyd,  3  Whart.  538  ;  Bowser  controversy.     On  the  point  of  execu- 

V.  Cravencr,  56  Penn.  St.   142;  Car-  tion.  Bowser  i'.  Cravenor  may  alfo  be 

ter  V.  Fishing  Co.   77  Penu.  St.  310  ;  referred  to,  and  to  it  we  may  add  Mc- 

ScharH'  v.  Keener,  64  Penn.  St.  376.  Reynolds  v.   Longenborger,    7    P.    F. 

"  That  recitals  in  ancient  deeds  are  Smith,  13,  in  which  the  admissibility 

evidence  of  pedigree,  is   undoubtedly  of  ancient  documents   in   evidence  is 


the  law  of  this  state.  It  was  so  held 
in  Paxton  v.  Price,  1  Yeates,  500, 
and  Morris's  Lessee  y.  Vanderen,  1 
Dallas,  67.     The  question  arose  again 


discussed    at    length."      Agncw,    J., 
Scharflfr.  Keener,  64  Penn.  St.  378. 

''   Kidney   v.    Cockburn,    2    Rus.   & 
Mvl.    168  ;    Butler    r.    Mountgarret, 


in  Murphy  r.  Lloyd,  3  Wharton,  538;     6  Ir.  Law  Rep.  N.  S.  77  ;   7  II.  of  L. 
and  the  deed  was  excluded  only  on     Cas.  633. 

217 


§  212.]  THE  LAW   OF   EVIDENCE.  [BOOK  I. 

but  not  SO  of  the  recitals  in  bills  in  chancery.^  As  evidence  of 
peculiar  weight  in  this  relation  may  be  noticed  entries  proved  to 
be  made  by  a  deceased  parent  or  near  relative  as  to  a  family 
birth,  death,  or  marriage.^  That  reputation  with  cohabitation 
is  admissible  to  prove  marriage,  is  elsewhere  distinctively  dis- 
cussed.^ 

§  211.  Evidence  of  the  conduct  of  deceased  relatives  is  re- 
ceivable on  such  issues ;  and  especially  of  the  manner 
well  as  in  which  a  person  has  been  brought  up  and  treated  by 
tions  so'  his  family.  "  If  the  father,"  says  Mansfield,  C.  J.,  "  is 
admissible.  pj.QyQ(j  ^q  \id,\e  brought  up  the  party  as  his  legitimate 
son,  this  is  sufficient  evidence  of  legitimacy  till  impeached  ;  and 
indeed  it  amounts  to  a  daily  assertion  that  the  son  is  legiti- 
mate." 4 

§  212.  Even  supposing  we  limited  declarations  to  the  mere 

Declara-       Statement  of  relationship,  yet  this  relationship  neces- 

go'tothe^     sarily  involves  the  facts  necessary  to  its  constitution. 

h^^*^""^     Legitimacy,  for  instance,  involves  the  marriage  of  the 

lationship     parents  ;  succession,  the  death  of  the  ancestor.     For  the 

may  be  in-  ....  -,      . 

ferred.  rcason,  therefore,  that  the  admissibility  of  a  conclusion 
of  law  involves  the  admissibility  of  the  facts  on  which  it  depends, 
we  must  hold  that  declarations  of  the  class  before  us  are  receivable 
to  prove  the  facts  by  which  relationship  is  constituted.  Hence, 
as  we  have  just  seen,  it  is  admissible,  in  order  to  prove  relation- 
ship, to  adduce  declarations  of  deceased  relatives  as  to  marriages 
and  deaths.  Any  other  family  incidents,  calculated  to  fix  points 
of  pedigree,  will  be  in  like  manner  admissible.  Thus,  in  an  Eng- 
lish case,  where  it  was  important  to  settle  the  seniorit}'^  of  three 
sons,  born  at  the  same  birth,  it  was  held  admissible  to  prove  the 
father's  declarations,  that  he  named  them  Stephanas,  Fortunatus, 
and  Achaicus,  following  the  order  in  the  seventeenth  verse  of  the 
sixteenth  chapter  of  St.  Paul's  First  Epistle  to  the  Corinthians, 
to  mark  their  succession,  and  to  prove  also  the  aunt's  declara- 

1  Boileau  v.  Rutlin,  2  Ex.  R.  678.  8  gee  supra,  §§  84,  205. 

^  See  infra,  §219;  Berkeley  Peer.  *  Berkeley  Peerage  case,  4   Camp. 

4  Camp.  401,  418;  Suss.  Peer.  11   CI.  416;    cf.    Khajah  Hidayut   Oollah  v. 

&  F.  85  ;    Clara  v.  Ewell,  2  Cr.  C.  Rai  Jan  Khanum,  3  Moo.  Ind.  App. 

C.  208  ;  Carkskadden  v.  Poorraan,  10  295  ;  Shrewsbury  Peerage  case,  7  H. 

"Watts,    82 ;    Watson  v.   Brewster,    1  L.  Cas.    1  ;    Powell's   Evidence  (4th 

Penn.  St.  381;  and  see  infra,  §  654.  ed.),  181.     And  see  supra,  §  201. 
218 


CHAP.  IV.]  PEDIGREE.  [§  213. 

tions,  that  she  tied  strings  around  the  arms  of  the  second  and 
third  children,  for  the  same  purpose.^ 

§  213.  In  the  cases  cited  above  it  is  sometimes  said  that  such 
declarations  must  be  ante  litem  inotam  ;  and  so  has  it   ^^   , 

'  Declara- 

been  expressly  ruled  in  the  English  court  of  last  re-   t'o"  must 

„         ^  .    ,,       .  .  r.      1  have  been 

sort."  X  et,  especiaiiy  in  view  or  the  recent  statutes  antt  litem 
admitting  parties  as  witnesses,  it  is  hard  to  see  why  "*°  '^'^' 
the  suspicion  of  concoction,  imputable  to  declarations  j^ost  litem 
motam,  should  not  be  left  to  the  determination  of  the  jury. 
There  are  some  pedigree  cases  so  old,  that  if  declarations  of  de- 
ceased persons  concerning  them  be  received  at  all,  such  declara- 
tions must  be  j9o«f  litem  motam;  nor  is  it  always  possible  to  de- 
termine where  the  suspicion  in  question  begins.  A  dispute  about 
legitimacy,  for  instance,  often  agitates  and  divides  a  family  as 
effectively  before  suit  brought  as  afterwards,  and  if  conflicts  of 
this  class  should  exclude  evidence  in  any  case,  it  should  exclude 
it  in  all  cases.  Nor  should  it  be  forgotten  that  even  where  the 
declaration  is  ante  litem  motam,  the  person  who  undertakes  to 
recollect  and  repeat  it  does  so  jyost  litem  motam;  and  the  evi- 
dence takes  shape,  therefore,  under  the  influences  which  are 
declared  fatal  to  its  reception.  The  better  view  is  to  apply  the 
test  ante  litem  motam  leniently,  even  if  under  the  new  statutes 
it  still  exists,  for  the  reason  that  while  it  may  shut  out  much  re- 
liable evidence,  it  does  not  shut  out  much  that  is  unreliable  ;  and 
to  increase  the  scrutiny  to  which,  on  the  question  of  credibility, 
we  should  subject  the  declarations  of  deceased  relatives,  declara- 
tions wliich  in  many  cases  are  steeped  in  family  pride,  and  in  few 
cases  are  made  free  from  the  prejudices  of  family  contention,  if 
not  litigation.  Hence,  where  in  a  case  of  disputed  descent  from 
a  lunatic  one  of  the  claimants  was  allowed  to  give  in  evidence  a 
deposition,  made  by  a  deceased  relation  of  the  lunatic  before  a 
master  in  chancery,  on  an  injunction  to  discover  who  was  entitled 
by  consanguinity  to  become  committee,  it  was  urged  tliat  the 
deposition  was  inadmissible  as  being  made  jt>os<  litem  motam;  but 

1  Vin.  Abr.  Ev.  T.  b.  21.  See  C:is.  (533.  See,  also,  Ellicott  v.  Pearl, 
Isaac  V.  Gompertz,  Ilubb.  Ev.  of  Sue-  10  I'et.  412;  Bancrt  v.  Day,  3  Wash, 
cession,  G50;  and  remarks  in  Taylor's  C.  C.  243;  Conjolle  v.  Ferrie,  2tJ  Harb. 
Ev.  §  580.  177;  S.  C.   23  N.  Y.  91;  Morgan  v. 

2  Butler  V.  Mountgarret,  7  H.  of  L.  rurnell,  4  Hawks,  95. 

219 


§  215.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

the  court  held  that  It  was  not  80,^  but  that  it  could  be  received 
for  what  it  was  worth,  the  objection  going  to  credibility.  On  the 
other  hand,  in  a  petition  for  a  declaration  of  legitimacy,  it  was 
proved  that  A.,  the  petitioner's  grandfather  (whose  legitimacy 
was  in  issue),  had  claimed  some  property  in  the  possession  of  his  . 
reputt'd  maternal  uncle,  but  the  latter  said  that  he  should  de- 
fend any  action  which  A.  might  bring,  and  communicated  the 
circumstances  to  A.'s  maternal  uncle,  and  A.  replied  by  letter 
that  he  wished  to  establish  his  legitimacy,  but  took  no  further 
pi'oceedlngs.  Sir  J.  Hannen  held  that  there  was  proof  of  the 
commencement  of  a  controversy,  so  as  to  exclude  subsequent 
declarations  by  any  member  of  the  family  as  to  the  marriage  of 
A.'s  father  and  mother.^ 

§  214.  But  even  though  declarations  after  litigation  has  be- 
gun are  inadmissible,  they  will  not  be  excluded  on  account  of 
their  having  been  made  with  the  express  view  of  preventing  dis- 
putes,^ or  in  direct  support  of  the  declarant's  title,*  or  from  the 
declarant  being  in  the  same  situation,  touching  the  matter  in 
contest  with  the  party  relying  on  the  declaration.^ 

§  215.  If  the  declarant  is  living,  he  must  be  produced  ;  for 
Declarant  i^  witiiin  the  process  of  the  court,  his  declarations,  like 
dead.^*^        the  declarations  of  persons  against  their  interest,  are 

*  Gee  V.  Good,  29  L.  T.  123;  S.  C.  In  the  Sussex  Peerage  case,  where 
under  name  of  Gee  v.  Ward,  7  E.  &  the  claimant,  Colonel  d'Este,  was  re- 
B.  609.  quired  to  prove  that  his   parents,  the 

2  Frederick  v.  Atty.  Gen.  44  L.  J.,  Duke   of    Sussex   and  Lady  Augusta 

P.  &M.  1;  L.   R.  3  P.  &  D.  196;  22  Murray,  were  legally  married,  decla- 

W.   R.   41G;  Powell's  Evidence,    4th  rations   contained  in  the   duke's  will 

ed.  183.  and  affirming  most  solemnly  the  fact 

8  Berkeley  Peerage  case,  4  Camp,  of  marriage,  as  also  statements  to  the 

401.  same  effect  made  by  his  royal  highness 

*  Doe  V.  Davies,  10  Q.  B.  325.  in  conversation,  were  rejected;  it  ap- 
^  Moukton  t'.  Att.  Gen.  2  Russ.  &  pearing  that. some  years  previously  to 

M.    160;  Powell's    Evidence,  4th   ed.  sudi  declarations  and  statements  being 

165.     See,  also,  Shedden  ?;.  Atty.  Gen.  made,  a  suit  had   been  instituted  by 

2  Sw,  &  T.  170;  Reilly  v.  Fitzgerald,  the  crown  to  annul  the  prince's  mar- 

1   Drury  Chan.     120-140,  overruling  riage,  and  it  not  being  shown,  as  in 

Walker  v.  Beauchamp,  6  C.  &  P.  552;  truth  it  could  not  be,  that  that  mar- 

Davies  v.  Lowndes,  7  Scott  N.  R.  198;  riage    was   not  the  very  marriage  on 

S.  C.  6  M.  &  Gr.  517;  and  see  Butler  which  the  claimant  relied.     11  CI.  & 

V.  Mountgarret,  7  H.  of  L.  Cas.  633;  Fin.  85-99. 
Elliott  V.  Peirsol,  1  Pet.  328. 

220 


CHAP.  IV.]  /  PEDIGKEE.  [§  216. 

inadmissible.^  Yet  such  declarations,  if  the  declarant  be  de- 
ceased, are  not  excluded  by  the  fact  that  living  members  of  the 
same  family  could  be  examined  on  the  same  point.^  But  in  a  re- 
markable case  in  Ireland,  where,  in  order  to  establish  a  Scotch  mar- 
riage, a  relative  of  the  supposed  husband  had  been  asked  at  the 
trial  what  she  had  heard  on  the  subject  from  members  of  the 
famil}^,  her  answer  was  held  by  the  court  of  error  to  have  been 
rightly  rejected,  on  the  ground  that  the  question  had  not  been 
limited  to  statements  made  by  deceased  relatives',^ 

§  216.  It  is  not,  however,  every  relation  who  is  entitled  to  be 
regarded  as  a  proper  authority  for  ex  parte  declarations 
of  this  class.  Although  a  more  liberal  test  may  be  ap-  must  be  de 
plied  when  no  other  evidence  is  attainable,  yet  strictly,  lated  to 
declarations  as  to  a  family,  in  order  to  be  received,  '*"''^'- 
must  emanate  from  deceased  persons  connected  with  such  family 
by  blood  or  marriage.*  So  closely  has  this  line  been  pursued, 
that  the  declaration  of  an  illegitimate  son,  to  the  effect  that  a 
natural  brother  died  without  issue,  has  been  rejected,  ^  and  so  of 
the  declaration  of  one  brother,  that  another  brother  had  an  ille- 
gitimate son  ;  ^  though  these  cases  might  be  rested  on  the  ground 
that  the  facts  being  so  recent,  better  evidence  than  declarations 
could  be  secured.''^  But  if  we  carry  out  the  above  rule  logically, 
a  bastard  cannot  in  any  case  be  a  witness  as  to  the  pedigree  of 
his  putative  family,  since  to  suppose  him  to  have  a  pedigree, 
supposes  him  not  to  be  a  bastard.^ 

1  Pendrt'llr.  rendrell,  2  Str.  924;  ell,  17  Tet.  213;  1  How.  S.  C.  231 
Butler  V.  Mount<;arret,  6  Ir.  Law  R.  Chapman  v.  Chapman,  2  Conn.  3-17 
N.  S.  77;  7  H.  of  L.  Cas.  633;  Stcgall  Armstrong  v.  McDonald,  10  Barb 
V.  Stogall,  2  Brock.  256;  White  v.  300;  Carnesu.  Crandall,  10  Iowa,  3  77 
Strother,  11  Ala.  720.  State  u.    Waters,    3    Irod.     L.    455, 

2  Taylor's   Ev.    §   577;  1    Ph.   Ev.  Greenwood  y.  Spillcr,  3  111.  502;  Speed 
212.  V.  Brooks,  7  J.  J.  Mar>h.  11 D, 

8  6  Ir.  Law  R.  N.  S.  77;    7  II. of  L.  ^  Doe  v.  Barton,  2  M.  &  Rob.  28. 

Cas.  633,  S.  C.  in  Dom.  Proc.  ^  Crispin  v.  Doglioni,  3   Sw.  &  Tr. 

*  Johnson  v.  Lawson,  2  Bing.   86  ;  44.     See  snpra,  §  203. 

Gee  r.  AVard,  7  E.   &  B.  50D;  Davies  ^  See    Cooke    v.    Lloyd,    Pea.    Ev. 

I'.  Lowndes,  7  ScottN.  R.  188;  Shrews-  App.  .\xviii.;  Ilitchius  t;.  Eardley,  L. 

bury  Peer.  7  H.  of  L.  Cas.  23;  Monk-  R.  2  P.  &  D.  248. 

ton  I'.  Atty.  Gen.   2   Rus.  &  M.   159;  »  See  Taylor's  Ev.  §  573,  citing  R. 

Moocrs  i;.  Bunteen,  29  N.  II.  4..'0;  El-  v.  Rishworth,   2  Q.  B.  487;  D^ke  v. 

licott  V.  Pearl,   10   Pet.  412;  Stein  u.  Williams,    2   Sw.    &  Tr.  491 ;  Doe  v. 

Bowman,  13  Pet.  209;  Jewell  v.  Jew-  Davies,  10  Q.  B.  314.     See,  however, 

221 


§  219.] 


THE   LAW    OF   EVIDENCE. 


[book  I. 


Dissolution 
of  niar- 
riafje  con- 
nection l)y 
deatli  doL'3 
not  ex- 
clude. 


§  217.  The  declarations  of  a  deceased  person  who  is  related  to 
a  family  by  marriage  ai'e,  as  we  have  seen,  admissible 
to  prove  the  pedigree  of  the  family,  including  those 
who  compose  it ;  nor  does  it  operate  to  exclude  such 
declarations  that  they  were  made  by  a  husband,  as  to 
the  family  of  a  deceased  wife,  unless,  it  would  seem, 
it  should  appear  that  the  information  detailed  was  received 
after  the  wife's  death.^ 

§  218.  Before  such  declarations,  however,  can  be  admitted, 
the  relationship  of  the  declarant  to  the  family  must  be 
proved  by  other  evidence  than  his  declarations ;  for  it 
would  be  ?i,  petitio  principii  to  say  that  his  declarations 
are  receivable  because  he  is  a  member  of  the  family,  and  he  is 
a  member  of  a  family  because  his  declarations  are  receivable.^ 
Such  preliminary  proof,  however,  need  establish  only  a  primd 
facie  case.^ 

§  219.  For  the  same  purpose  may  be  received  an  ancient  fam- 
ily record  or  memorial,  provided,  always,  that  there  is 
family  rec-   evidence  that  it  has  been  treated  as  authoritative  by 
memorials    the  family,  and  the  parties  making  the  record  are  dead.'* 
admissible,    g^  ^  family  bible  or  testament  proved  to  be  such,  and 


Relation- 
ship must 
be  proved 
aliunde. 


contra.,  Jewell  v.  Jewell,  17  Pet.  213; 
1  How.  219,  and  cases  cited  supra, 
§  203. 

1  Vowles  V.  Young,  13  Ves.  140; 
Doe  V.  Harvey,  Ry.  &  M.  297.  See, 
also,  cases  cited  supra,  §§  202,  216. 

a  R.  V.  All  Saints,  7  B.  &  C.  789  ; 
Davies  v.  Morgan,  1  C.  &  J.  591 ;  Atty. 
Gen.  V.  Kohler,  9  H.  of  L.  Cas.  660; 
Dyke  v.  Williams,  2  Sw.  &  Tr.  491; 
Doe  V.  Randell,  2  M.  &  P.  24 ;  Black- 
burn V.  Crawford,  3  Wall.  1  75. 

'  Vowles  V.  Young,  13  Ves.  147; 
Monkton  v.  Atty.  Gen.  2  Russ.  &  M. 
157. 

*  Hood  V.  Beauchamp,  8  Sim.  26  ; 
Tracy  Peer.  10  CI.  &  F.  154;  Green- 
leaf  V.  R.  R.  30  Iowa,  301.  Infra, 
§  660. 

In  the  Berkeley  Peerage  case.  4 
Camp.  401,  on  an  issue  as  to  the  legit- 
imacy of  the  petitioner,  the  three  ques- 

222 


tions  referred  by  the  house  of  lords  to 
the  judges  were  substantially, — 

1.  Whether  the  depositions  made 
by  A.'s  reputed  father,  in  a  suit  by  A. 
against  B.,  were  evidence  of  pedigree 
for  A.,  in  a  suit  by  A.  against  C. 

2.  Whether,  in  a  similar  case,  en- 
tries made  by  A.'s  reputed  father  in  a 
bible,  that  A.  was  his  son,  born  in 
wedlock  on  a  certain  day,  were  inad- 
missible. 

3.  AVhether  such  entries  were  inad- 
missible, if  made  with  the  express 
purpose  of  establishing  A.'s  legiti- 
macy, in  case  it  should  ever  be  called 
in  question. 

The  point  in  the  first  question  in- 
volved the  question  whether  hearsay 
declarations  of  pedigree,  made  after  a 
judicial  controversy  has  arisen,  are 
admissible. 

The  point  in   the  second  question 


CHAP.  IV.] 


PEDIGREE. 


[§  219. 


containing  entries  of  family  incidents,  -will  be  so  received,  and 
this  without  proof  of  the  handwriting  of  the  entries.^  A  family- 
bible,  to  prove  age,  need  not  be  shown  to  belong  to  the  family, 
as  such.  It  is  enough  if  it  be  the  property  of  and  recognized  as 
authentic  by  a  member  of  the  family .^     Armorial  bearings,  also, 


was  whether  an  entry  in  a  book,  made 
by  a  deceased  relation,  is  evidence ; 
and  in  the  third,  whether  such  an  en- 
try, if  otherwise  a(hiiissible,  continues 
to  be  so  when  made  with  an  express 
purpose  of  providing  against  a  con- 
templated or  impending  controversy. 

It  was  held  that  the  evidence  in  the 
first  case  was  inadmissible,  as  having 
been  made  after  an  actual  and  not 
merely  a  judicial  controversy  had 
arisen ;  that  in  the  second  it  was 
strictly  admissible,  whether  the  entry 
was  made  in  a  bible  or  any  other 
book,  or  on  any  other  piece  of  paper ; 
and  that  in  the  third  case  it  was  also 
admissible,  but  with  strong  objections 
to  its  credibility,  on  account  of  the 
particularity,  and  perhaps  the  pro- 
fessed view  with  which  it  was  made. 

The  doctrine  in  this  important  case 
has  been  followed  up  by  the  Sussex 
Peerage  case,  11  CI.  &  Fin.  85. 
There  an  entry  made  in  her  prayer- 
book,  by  Lady  Augusta  Murray,  of 
her  marriage  at  Rome  to  the  Duke  of 
Sussex,  was  received  not  as  conclusive 
proof,  but  as  a  declaration  made  by 
one  of  the  parties.  In  the  same  case, 
evidence  of  declarations  by  a  deceased 
clergyman  that  he  had  celebrated  the 
marriage  was  rejected.  Powell's  Evi- 
dence, 4th  ed.  179. 

1  Hubbard  v.  Lees,  L.  11.  1  Ex. 
255;  6'.  C.  4  H.  &  C.  418;  Sussex 
Peerage  case,  11  CI.  &  F.  85  ;  Monk- 
ton  V.  Atty.  Gen.  2  llus.  &  M.  lt;2  ; 
Clara  v.  Ewell,  2  Cr.  C.  C.  209; 
Carkskadden  v.  Poorman,  10  Watts, 
82 ;  Watson  v.  Brewster,  1  Penn.  St. 
381  ;  Greenleaf  v.  K.  R.  30  Iowa,  301 ; 
Southern  Life  Ins.  Co.  v.  Wilkinson, 


53   Ga.   535  ;    though    see   Union    v. 
Plainfield,  39  Conn.  563. 

2  Southern  Life  Insurance  Co.  v. 
Wilkinson,  53  Ga.  535  ;  but  see  Union 
V.  Plainfield,  39  Conn.  563. 

In  Davies  v.  Lowndes,  6  M.  &  G. 
525 ;  7  Scott  N.  R.  213,  where  a 
paper  purporting  to  be  an  old  geneal- 
ogy having  been  ofiered  as  evidence 
of  pedigree,  Loi-d  Uenman  said  :  "  A 
pedigree,  whether  in  the  shape  of  a 
genealogical  tree,  or  map,  or  con- 
tained in  a  book,  or  mural  or  monu- 
mental inscription,  if  recognized  by  a 
deceased  member  of  the  same  family, 
is  admissible,  however  eai'ly  the  period 
from  which  it  purports  to  have  been 
deduced.  On  what  ground  is  this  ad- 
mitted ?  It  may  be  because  the  sim- 
ple act  of  recognition  of  the  docu- 
ment, and  consequent  acknowledg- 
ment of  the  relationship  stated  in  it 
by  a  member  of  the  family,  is  some 
evidence  of  that  relationship,  from 
whatever  sources  his  information  may 
have  been  derived,  because  he  was 
likely,  from  his  situation,  both  to  in- 
quire into  the  truth  of  such  matters, 
and,  from  his  means  of  knowledge,  to 
ascertain  it But  the  rea- 
son why  a  pedigree,  when  made  or 
recognized  by  a  member  of  the  fam- 
ily, is  admissible,  may  be  that  it  is 
presumably  made  or  recognized  by 
him  in  consetpience  of  his  jK-rsonal 
knowledge  of  the  individuals  therein 
stated  to  be  relations  ;  or  of  informa- 
tion received  by  him  from  some  de- 
ceased members,  of  what  the  latter 
knew  or  heard  from  otlier  members 
who  lived  before  his  time.  And  if 
so,  it  may  well  be  contended  lliat  if 

223 


§  220.] 


THE   LAW,  OF   EVIDENCE. 


[book  I. 


as  will  be  seen,^  whether  carved  on  wood,  painted  on  glass, 
engraved  on  monuments  or  seals,  or  otherwise  emblazoned,  are 
admissible  in  cases  of  pedigree  ;  not  only  as  tending  to  prove 
that  the  person  who  assumed  tliem  was  of  the  family  to  which 
they  of  right  belonged,  but  as  illustrating  the  particular  branch 
from  which  the  descent  was  claimed,  or  as  showing,  by  the 
empalings  or  quarterings,  the  nature  of  the  blazonry,  or  the 
shape  of  the  shield,  what  families  were  allied  by  marriage,  or 
what  members  of  the  family  were  descended  from  an  illegitiuiate 
stock,  or  were  maidens,  widows,  or  heiresses.^  When  a  family 
record  is  lost,  secondary  evidence  of  its  contents  is  admissible.^ 
§  220.  With  this  class  of  evidence  may  be  mentioned  inscrip- 
tions on  tombstones,  and  also  inscriptions  on  rings  and 
on  portraits,  which,  if  preserved  in  a  family,  may  be 
regarded  as  giving  a  family  tradition,  to  be  received 
for  what  it  is  worth.*  Where  the  original  monument 
cannot  be  brought  into  court,  then  a  copy  will  be  permitted.^ 


So  of  in- 
scriptions 
on  tomb- 
stones and 
rings. 


the  facts  rebut  that  presumption,  and 
show  that  no  part  of  the  pedigree 
was  derived  from  proper  sources  of 
information,  then  the  whole  of  it 
ought  to  be  rejected  ;  and  so,  also, 
if  there  be  some,  but  an  uncertain 
and  undefined,  part  derived  from  ref- 
erence to  improper  sources.  But 
■where  the  framer  speaks  of  individ- 
uals whom  he  describes  as  living,  we 
think  the  reasonable  presumption  is 
that  he  knew  them,  and  spoke  of  his 
own  personal  knowledge,  and  not 
from  registers,  wills,  monumental  in- 
scriptions, and  family  records  or  his- 
tory ;  and  consequently  to  that  ex- 
tent the  statements  in  the  pedigree 
are  derived  from  a  proper  source,  and 


are  good  evidence  of  the  relationship 
of  those  persons."  Powell's  Evidence 
4th  ed.  1 78. 

1  Infra,  §  22;  Taylor's  Ev.  §  592. 

2  Harl.  MS.  1836,  6141  ;  Hurvey  v. 
Hervey,  2  W.  Bl,  877  ;  Chandos  Peer. 
Pr.  Min.  6,  24,  37,  40,'  49;  Hunting- 
don Peer,  by  Bell,  280  ;  Att.  Gen.'s 
Rep.  359,  S.  C;  Hastings  Peer.  Pr. 
Min.  313;  Co.  Lit.  27  a;  Shrews- 
bury Peer.  7  H.  of  L.  Cas.  10;  Fitz- 
walter  Peer.  Pr.  Min.  49 ;  Camoys 
Peer.  Pr.  Min.  58  ;  1  Sid.  354. 

8  Holmes  v.  Marden,  12  Pick.  169; 
AVhite  V.  McLaughlin,  115  Mass.  167. 

*  Vowles  V.  Young,  13  Ves.  144  ; 
Camoys  Peer.  6  CI.  &  F.  801  ;  Davis 
V.   Lowndes,    7    Scott,   N.    R.    I!i3 ; 


6  Wain  V.  Bailey,  10  A.  &  E.  616  ; 
Clay  V.  Crowe,  8  Ex.  R.  298  ;  Slany 
V.  Wade,  1  Myl.  &  C.  338;  Tracy 
Peer.  10  CI.  &  Fin.  154;  Jones  v. 
Tarleton,  9  M.  &  W.  675.  Supra, 
§82. 

"In  the  case  of  tombstones,  no 
doubt  the  publicity  of  the  inscription 
224 


gives  a  sort  of  authenticity  to  it,  and 
if  it  remains  uncontradicted  for  a 
great  many  years,  it  would,  in  the  ab- 
sence of  every  other  fiict  in  the  ca?e, 
be  taken  to  be  true;  but  you  ciinnot 
put  it  higher  than  that."  Bacon,  V. 
C,  Ilaslam  v.  Crow,  19  W.  R.  969  ; 
Powell's  Evidence,  4th  ed.  181. 


CHAP.  IV.]      REPUTATION  TO  PROVE  DEATH  AND  MARRIAGE.       [§  224. 


§  221.   We  have  already  seen  that  charts  of  pedigree,  and  ar- 
morial   bearings,  have  in  like  manner  been  received,    so  of  pedi- 
when  it  is  proved  they  have  been  kept  as  family  rec-    frmorlTi*^ 
ords  ;  though  they  must  be  regarded  as  showing  rather   bearings, 
what  the  family  claimed  to  be  than  what  it  was.^ 

§  222.  But  when  a  pedigree  is  offered  without  proof  of  the  loss 
of  the  documents  of  which  it  is  made  up,  or  when  on  its  face  it 
shows  that  it  is  made  up  from  vague  traditions,  uttered  long  after 
the  events  to  which  they  refer,  it  is  inadmissible.^ 

§  223.  Death  may  be  proved  by  the  continuous  and  abiding 
general  reputation  of  the  community  to  which  the  party  Death  may 
belongs,  as  well  as  by  general  family  belief. ^  But  to  ^y^reputa- 
make  such  reputation  or  belief  admissible  it  must  be  ^'on- 
general,  not  limited  or  special.*  Elsewhere  is  noticed  the  pre- 
sumption of  death  to  be  drawn  from  the  issue  of  letters  of  ad- 
ministration.^ 

§  224.  Reputation  in  a  community,  we  have  already  seen,^  is, 
when  accompanied  by  cohabitation,  among  the  facts  by   so  may 
which  a  marriage  can  be  established. 


marriage. 


Perth  Peer.  2  II.  of  L.  Cas.  84  7; 
Boyle  V.  Burnett,  9  Gray,  '251  ;  North 
BrookCu'ld  i'.  Warren,  16  Gray,  171  ; 
Ewell  V.  State,  6  Yerg.  364  ;  Slaney 
V.  Wade,  1  Myl.  &  C.  338  ;  De  Roos 
Peer.  2  Cowp.  544.  Parke,  J.  (in 
Davies  v.  Lowndes,  6  M.  &  G.  525  ;  7 
Scott  N.  R.  193),  said  :  "  The  ground 
upon  which  the  inscription  on  a  tomb- 
stone or  a  tablet  in  a  church  is  ad- 
mitted is,  that  it  is  presumed  to  have 
been  put  there  by  a  member  of  the 
family  cognizant  of  the  facts,  and 
whose  declaration  would  be  evi- 
dence ;  where  a  pedigree  hung  up  in 
the  family  mansion  is  received,  it  is 
on  the  ground  of  its  recognition  by 
the  members  of  the  family." 

^  Supra,  §219.  Hervey  w.  Hervey, 
2  W.  Bl.  877;  Shrewsbury  Peerage,  7 
H.  of  L.  Cas.  10;  Ilubb.  Ev.  of  Sue. 
698.  See  Banert  v.  Day,  3  Wash.  C.  C. 
243,  where  a  genealo!j;ical  table,  cer- 
tified under  the  seal  of  a  foreign  offi- 
cer, was  excluded. 

VOL.   I.  15 


2  Davies  v.  Lowndes,  7  Scott  N.  R. 
213;  6  M.  &  Gr.  527;  quoted  supra,  § 
219;  State  v.  Joest,  51  Ind.  287. 

8  Infra,  §  1277;  Doe  i-.  Griffin,  1 
East,  293;  Jackson  v.  Etz,  5  Cow.  314; 
Pancoast  v.  Addison,  1  liar.  &  J. 
350;  Raborg  v.  Hammond,  2  liar.  & 
G.  42;  Ringhouse  v.  Keever,  49  111. 
470;  Scheel  v.  Eidman,  77  111.  301; 
Buntin  v.  Duchane,  1  Blackf.  Ind.  26; 
Tisdale  v.  Ins.  Co.  26  Iowa,  170;  An- 
derson V.  Parker,  6  Cal.  197;  Eaton 
V.  Talmadge,  24  Wise.  217;  Ewing  v. 
Savary,  3  Bibb,  235.  See  Hall,  in  re, 
L.  R.  4  Eq.  415. 

*  Morton  v.  Barrett,  19  Me.  109; 
Eastman  v.  Martin,  19  N.  II.  152; 
Morrill  V.  Foster,  33  N.  II.  379;  Jack- 
son I'.  Boneham,  15  Johns.  226;  Kcich 
V.  Rinehart,  10  Penn.  St.  240;  Hum- 
mel V.  Brown,  24  Penn.  St.  310.  See 
infra,  §  1277. 

6  Infra.  §  1278. 

•  Supra,  §§  84,  205. 

225 


§  22G.] 


THE   LAW    OF   EVIDENCE. 


[book  I. 


In  adul- 
tery corre- 
spondence 
may  be 
proved  to 
show  rela- 
tions of 
parties. 


§  225.  In  suits  for  damages  to  the  husband  against  a  third 
party  for  adultery  with  the  wife,  a  peculiar  modifica- 
tion is  accepted  of  the  rule  excluding  hearsay.  In  such 
cases,  where  it  is  material,  with  the  view  of  increasing 
or  diminishing  the  damages,  to  have  information  as  to 
the  relations  of  the  husband  and  wife  before  the  adul- 
tery, it  is  admissible  to  put  in  evidence,  not  only  their 
conversation  with  each  other,  but  their  conversation  with  third 
persons.'  It  is  necessary,  however,  as  a  prerequisite  to  the  ad- 
mission of  such  evidence,  that  it  should  be  shown  by  evidence, 
independent  of  the  date  appearing  on  the  face  of  the  letters,^  that 
they  were  written  by  the  wife  to  the  husband  prior  to  any  sus- 
picion of  misconduct  on  her  part.^ 


VII.  EXCEPTION  AS  TO  SELF-DISSERVING  DECLARATIONS  OF  DECEASED 

PERSONS. 

§  226.  Another  exception  to  the  rule  excluding  heai'say  is  to 
Declara-  be  found  in  the  reception  of  the  declarations  of  deceased 
deceased  persons  made  against  their  interest,  although  such  dec- 
aealnst  laratious  are  offered  in  suits  in  which  neither  such 
their  inter-  deceased  Dcrsous,  nor  those  claiminof  under  them,  were 
or  are  parties.^ 


est  receiv 
able 


In  the  leading  case  to  this  effect,^  to 


^  Trelawney  v.  Colman,  2  Stark. 
R.  191;  1  B.  &  A.  90,  S.  C. ;  Willis 
V.  Bernard,  8  Bing.  376;  Winter  v. 
Wroot,  1  M.  &  Rob.  404,  per  Ld. 
Lyndhnrst;  Taylor's  Ev.  §  520. 

2  Trelawney  v.  Coleman,  2  Stark. 
R.  193,  per  Holroyd,  J.;  Houliston  v. 
Smyth,  2  C.  &  P.  24,  per  Best,  C.  J. 
This  last  case  was  an  action  for  board 
and  lodging  supplied  to  a  wife,  while 
living  separate  from  her  husband  in 
consequence  of  his  cruelty;  and  letters, 
purporting  to  be  written  by  the  wife, 
were  tendered  by  the  husband  to  rebut 
this  charge,  but  were  rejected  on  the 
ground  that  no  proof  was  given,  be- 
yond their  date,    of  the   time    when 


they  were  sent.  See  Wilton  v.  Web- 
ster, 7  C.  &  P.  198. 

8  Edwards  v.  Crock,  4  Esp.  39,  per 
Ld.  Kenyon;  Trelawney  v.  Coleman, 
IB.  &  A.  90;  Wilton  v.  Webster,  7 
C.  &  P.  198,  per  Coleridge,  J.  See 
Wyndham's  Divorce  Bill,  3  Macq.  Sc. 
Ca.  H.  of  L.  54. 

4  Higham  v.  Ridgway,  10  East,  109; 
S.  C.  2  Smith's  Lead.  Cas.  5th  ed.  271 ; 
Middleton  v.  Melton,  10  B.  &  C.  317; 
R.  V.  Birmingham,  1  B.  &  S.  768;  R. 
V.  Exeter,  10  B.  &  S.  433;  Davies  v. 
Humphreys,  6  M.  &  W.  153  ;  Doe  v. 
Coulthred,  7  A.  &  E.  235;  De  Bode's 
case,  8  Q.  B.  208;  Musgrave  v.  Em- 
merson,  10  Q.  B.  326;  Short  v.  Lee,  2 


6  Higham  v.  Ridgway,  10  East,  109,  ut  supra;  2  Smith,  L.  C.  287;  cf.  Glea- 
dow  V.  Atkin,  1  C.  &  M.  410. 
226 


CHAP.  IV.]     DECLARATIONS  OF  DECEASED  PERSONS.       [§  226. 

prove  the  time  of  a  birth,  evidence  was  given  that  the  man- 
midwife,  who  attended  the  birth,  was  dead  ;  and  the  books  of 
the  latter,  who  had  kept  them  regularly,  were  offered  in  evi- 
dence. They  contained  an  entry,  in  the  handwriting  of  the  de- 
ceased, of  the  circumstances  of  the  birth,  and  the  date.  There 
was  also  a  charge  for  attendance,  against  which  the  word  "  Paid  " 
was  marked.  It  was  held  that  the  entry  was  evidence  of  the 
time  of  the  birth.  Lord  Ellenborough,  C.  J.,  said  :  "  The  entry 
made  by  the  party  was  to  his  own  immediate  prejudice,  when 
he  had  not  only  no  interest  to  make  it,  if  it  was  not  true,  but  he 
had  an  interest  the  other  way,  not  to  discharge  a  claim,  which 
it  appears  from  other  evidence  that  he  had."  And  Bayley,  J., 
added  :  "  All  the  cases  agree,  that  a  written  entry  by  which  a 
man  discharges  another  of  a  claim  which  he  had  against  him,  or 
charges  himself  with  a  debt  to  another,  is  evidence  of  the  fact 
which  he  so  admits  against  himself  ;  there  being  no  interest  of 

his  own  to  advance  by  such  entry The  principle  to  be 

drawn  from  all  the  cases  is,  that  if  a  person  have  peculiar  means 
of  knowing  a  fact,  and  make  a  declaration  of  that  fact  which  is 
against  his  interest,  it  is  clearly  evidence  after  his  death,  if  he 
could  have  been  examined  to  it  in  his  life-time."  The  same 
court  subsequently  ^  received  evidence  of  entries  of  charges  made 
by  a  deceased  attorney,  who  had  prepared  a  lease,  to  show  that 
the  lease  was  executed  at  a  time  later  than  its  apparent  date ; 
the  charges  for  preparing  the  lease  appearing  to  have  been  paid, 
but  not  upon  the  face  of  the  entries.  In  conformity  with  these 
authorities.  Lord  Penzance  has  admitted,^  as  evidence  of  tlie 
execution  of  a  will,  an  entry  made  by  a  deceased  solicitor  in  his 
ledger  admitting  payment  of  his  charges  for  drawing  it,  and 
attending  its  execution."^ 

Jac.  &  W.  464;   Sussex  Peer,  case,  11  v.  Hueston,  10  Oh.  St.  418;  Blattner 

CI.  &   F.  103;  Prescott  v.   Hayes,  43  v.  Wois,  19  111.  '210;  Pease  «».  Jenkins, 

N.    II.    593;  Ilicks   i'.  Cram,   17  Vt.  10  Ired.  L.  355;  Coleman  v.  Frazier, 

449;  Litchfield  Co.  t'.  Bennett,  7  Cow.  4  Rich.  14G;  Foster  r.  Brooks,  G  (la. 

234;     White    v.    Chouteau,    1    E.    D.  2H7;     Ilin|;o    r.    Kirharilson,    53    Mo. 

Smith,  493;  Livingston  v.  Arnou.\,  56  385. 

N.  Y.  518,  quoted    infra,  §    239;  St.  ^  Doc  v.  Robson,  15  East,  32. 

Clair    V.    Shale,    20    Penn.    St.    108;  a  In  re  Thomas,  41    L.  J.,  P.  &  M. 

Stair  V.  Bank,  55  Penn.  St.  364;  Tay-  32. 

lor  L'.  Guuld,  57   Penn.  St.  152;  Bird  »  Powell's  Evidence,  4th  cd.  195. 

227 


/ 


/ 

'  §  228.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

§  227.  Such  declarations  against  interest  are  admissible  against 

„  , .  third  parties,  even  though  the  declarant  himself  re- 
No  objec-  ^  °  •111 

tion  that  ceived  the  facts  on  hearsay,  provided  the  person  from 
larations  whom  the  hearsay  springs  was  competent  to  speak.^ 
on^ilTaT-'^  "  An  entry  in  an  attorney's  bill  of  a  service  of  notice 
^*^'  on  A.  B.  would   be  evidence   of    a  service,  although 

such  notice  being  generally  served  by  an  attorney's  clerk,  the 
attorney  probably  had  no  personal  knowledge  of  such  service."  ^ 
"  So  if  an  accoucheur  puts  down  in  his  book  the  name  of  a  lady 
whom  he  had  delivered,  and  debits  himself  with  the  payment, 
such  entry  would  be  evidence  of  the  name,  although  he  may 
have  known  nothing  of  her  name  except  from  the  information  of 
others."  ^  It  is  essential  to  prove  either  directly  or  circumstan- 
tially that  the  person  whose  declarations  are  offered  is  dead ;  * 
though  in  Virginia  the  admissibility  has  been  extended  to  cases 
where  the  declarant  cannot  be  compelled  to  testify.^  That  the 
declarant  had  a  competent  knowledge  of  the  subject  matter  of 
his  declaration  is  necessary  in  order  to  entitle  his  declaration  to 
weight.  But  a  want  of  knowledge  goes  not  to  admissibility  but 
to  credibility.^ 

§  228.  It  is  essential,  however,  that  such  declarations,  when 
Declara-  made,  should  have  been  self-disserving  ;  i.  e.  that  they 
beTeiT-dis-  ^hould  have  been,  when  made,  against  the  pecuniary 
serving.  or  proprietary  interests  of  the  declarant.'  Thus  in  a 
case  argued  with  conspicuous  ability  in  the  house  of  lords,^  dec- 

1  Crease  v.  Barrett,  1  C,  M.  &  R.  6  Crease  v.  Barrett,  1  C,  M.  &  R. 
919.  925.     See    Sussex   Peerage   case,    11 

2  Percival  v.  Nanson,  7  Ex.  1,  Al-     CI.  &  F.  112. 

derson,  B.  ^  R.  v.  Worth,  4  Q.  B.  132;   R.  v. 

8  Pollock,  C.  B.,  in5.  C;  Powell's  Birmingham,   1  B.  &  S.   768;  Smith 

Evidence,  4th  ed.  200.  v.  Blakey,  L.  R.  2  Q.  B.  326  ;  S.  C. 

*  Phillips  I'.  Cole,  10  A.  &  E.  106;  8  B.  &  S.  159  ;  Orrett  v.    Corser,  21 

Doe  r.  Michael,  17  Q.  B.  276  ;  Spargo  Beav.  52  ;  Richards  v.  Gogarty,  I.  R. 

V.  Brown,  9   B.  &  C.   935  ;    Rand  v.  4  C.  L.   300 ;  Alleghany  Co.  v.  Nel- 

Dodge,  17  N.  H.  343  ;  Coit  v.  Howd,  son,  25  Penn.  St.  332  ;  Cruger  v.  Dan- 

1    Gray,    547;    Currier    v.    Gale,    14  iel,  1    McMul.   Eq.   157;  Poorman  v. 

Gray,  504 ;  Lowry  v.  Moss,  1   Strobh.  Miller,  44  Cal.  269. 

63.  8  Sussex  Peerage  case,  11   C.  &  F. 

5  Harriman    v.    Brown,    8    Leigh,  85. 
697 ;  contra,    Stephen   v.    Gwenap,  1 
M.  &  R.  120. 

228 


CHAP.  IV.]  DECLARATIONS   OF  DECEASED   PERSONS.  [§  229. 

larations  as  to  the  marriage  of  Lady  Augusta  Murray  with 
the  Duke  of  Sussex,  made  by  the  deceased  clergyman  who  per- 
formed the  ceremony,  were  tendered  on  the  ground  that  they 
were  declarations  of  a  person  who  knew  the  facts,  who  was  not 
interested  in  misrepresenting  them,  and  who  had  an  interest  in 
being  silent  concerning  them,  because  the  unlawful  celebration 
of  the  marriage  might  have  subjected  him  to  a  prosecution. 
But  all  the  judges  concurred  in  holding,  that  the  declaration 
must  be  adverse  to  some  pecuniary  interest  in  the  declarant ; 
and  that  even  the  fear  of  a  prosecution  was  not  a  sufficient  in- 
terest to  let  in  a  declaration  as  contrary  to  it.  Lord  Campbell 
said  :  "  As  to  the  point  of  interest,  I  have  always  understood 
the  rule  to  be,  that  the  declaration,  to  be  admissible,  must  have 
been  one  which  was  contrary  to  the  interests  of  the  party  mak- 
ing it  in  a  pecuniary  point  of  view.  I  think  it  would  lead  to 
most  inconvenient  consequences,  both  to  individuals  and  the  pub- 
lic, if  we  were  to  say  that  the  apprehension  of  a  criminal  prose- 
cution was  an  interest  which  ought  to  let  in  such  declarations  in 
evidence."  ^ 

§  229.  That  an  entry  which  debits  the  writer  with  an  amount 
received  and  then  credits  him  with  the  same  amount  paid  out, 
can  be  regarded  as  made  against  his  interest,  has  been  denied  in 
England  at  nisi  prius;^  but  the  admissibility  of  such  evidence  is 
sustained  by  the  liigh  authority  of  Lord  Denman  and  Lord  Wens- 
leydale,*^  and  may  be  successfully  defended  on  the  ground  that  if 
there  be  a  suspicion  that  the  whole  entry  is  a  fiction  (and  on  this 
assumption  only  can  admission  be  refused),  this  goes  to  credit 
and  not  to  admissibility.^  If  the  entry  is  false,  it  can  be  con- 
tradicted, as  it  is  only  jjrimd  facie  proof.  But  as  the  portion  of  it 
which  charges  the  party  is  admissible,  all  statements  of  correlative 
matters  contained  in  the  same  writing,  or  in  other  writings  re- 
ferred to  in  such  writing,  are  receivable  for  what  they  are  worth. ^ 

1  Powell's  Evidence,  4th  ed.  196.  *  Sec  Taylor's  Ev.  609  el  set].,  cit- 
See,  to  same  effect,  Davis  v.  Lloyd,  1  inp;  Hisliain  v.  Ridgway,  10  East, 
C.  &  K.  276.  109  ;  Doc   v.   llobson,    15   East,    32  ; 

2  Doe  V.  Vowles,  1  M.  &  Rob.  261 ;  Thomas,  in  re,  41  L.  J.,  Pr.  &  Mat.  32. 
Doe  V.  Burton,  9  C.  &  P.  254.  ^  Stead  v.    Ileaton,  4    T.    R.   669; 

8  R.  V.  Hendon,  cited  9  C.  &  P.  Davies  u.  Humphreys,  6  M.  &  W.  153; 
255  ;  R.  r.  Lower  lleyford,  cited  2  ISIarks  v.  Lahee,  3  Bint,'.  N.  C.  108  ; 
Smith's  Lead.  Cas.  283.  Mayor  of  Ivxeter  r.  Warrcu,  5  Q.  B. 

229 


§  230.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


§  280.  It  may  be  fairly  argued  that  an  entry  cannot  be  re- 
jected, which  charges  the  person  making  it  with  receiving  money 
from  another,  on  the  ground  that  such  entry  forms  only  a  part 
of  a  general  debtor  and  creditor  account,  the  balance  of  which  is 


773  ;  Musgrave  v.  Emmerson,  10  Q. 
B.  320  ;  Rudd  v.  Wright,  4  Y.  &  C. 
Ex.  294. 

To  this  efTcct  may  be  cited  the  re- 
marks of  Jessel,  M.  R.,  in  the  Eng- 
lish High  Court,  Chancery  Division, 
June,  1876,  Taylor  v.  Witham,  24 
W.  R.  877.  "This  question,"  be 
said,  "is  one  frequently  occurring, 
and  often  very  important.  Under 
what  circumstances  can  entries  made 
by  a  dead  man  be  received  in  evi- 
dence ?  There  is  no  doubt  of  the  es- 
tablished rule :  when  the  entries  are 
against  interest,  they  are  receivable, 
and,  when  receivable,  they  may  be 
used  for  all  purposes.  Now,  what  is 
the  meaning  of  *  against  interest  ?  ' 
I  agree  with  Mr.  Baron  Parke  that  it 
means  against  interest  prima  facie, 
and  nothing  more.  If  you  can  show 
aliunde  that  there  was  a  special  rea- 
son for  making  the  entry,  then  the 
evidence  may  be  worthless,  but  it  is 
not  the  less  admissible  if  against  in- 
terest ;:)r//Ha/acje.  But,  it  is  said,  in 
order  to  let  in  the  evidence,  you  must 
show  by  independent  testimony  cir- 
cumstances proving  the  entry  to  be 
against  interest.  In  the  present  case, 
the  entries  were  made  by  the  testator 
in  his  ordinary  book  of  accounts,  the 
genuineness  of  which  is  not  disputed. 

"  The  import  of  the  first  entry  is 
prima  facie  a  receipt  of  money  ;  in 
its  natural  purport  it  is  a  note  in  the 
testator's  book  that  he  has  received 
£20.  Now,  the  real  value  of  the  en- 
try, in  this  particular  case,  is  as  evi- 
dence that  there  was  a  debt  ;  but  that 
is  a  circumstance  collateral  to  the  nat- 
ural meaning  of  the  entry  by  itself. 
The  use  made  of  it  as  evidence  is  im- 

230 


material.  But,  it  is  said,  to  make  this 
use  of  the  evidence,  you  must  have 
something  else  to  show  prima  facie  a 
debt  existing  to  which  the  entry  may 
be  referred.  If  that  be  so,  and  no 
one,  I  think,  goes  farther  than  that 
against  the  admissibility,  —  not  even 
Mr.  Justice  Littledale,  in  Uoe  v. 
Vowles,  where  the  evidence  which 
was  rejected  ought,  so  far  as  I  can 
judge,  to  have  been  received,  —  if 
that  is  so,  we  have  it  proved  here, 
first,  that  the  testator  advanced  £2,- 
000  ;  secondly,  that  he  received  this 
£20  and  other  sums.  So  that  there 
is  a  good  deal  of  testimony  beyond 
this  mere  entry.  However,  I  wish  to 
ground  my  decision  upon  the  point  I 
mentioned  first,  that  the  evidence  is 
admissible,  or  not,  according  to  its 
jn-imd  facie  meaning  ;  and  if  admis- 
sible, is  so  for  all  purposes.  The  other 
entries  are  as  follows  [reading  the 
entries].  All  these  show  nothing  but 
payments  to  the  testator,  and  the  nat- 
ural meaning  of  them  is  against  his 
interest.  No  doubt  they  can  be  con- 
nected with  each  other,  and  with 
other  entries,  which  makes  them  im- 
portant evidence,  but  taken  by  them- 
selves they  are  nothing  but  entries 
against  interest.  In  the  case  of  each 
of  these,  also,  there  is  other  evidence 
of  the  debt,  so  that  their  admissibility 
may  be  justified  on  that  ground  also. 
It  follows  that  all  these  entries  are,  in 
my  opinion,  evidence.  I  think,  more- 
over, that  they  are  very  important  evi- 
dence, and  it  would  be  much  to  be  re- 
gretted if  a  judge  were  compelled  to 
reject  cogent  evidence  through  some 
technical  rule  of  law."  S.  P.,  Briggs 
V.  Wilson,  5  De  Gex,  M.  &  G.  12. 


CHAP.  IV.]  DECLARATIONS    OF   DECEASED   PERSONS.  [§  232. 

in  favor  of  the  receiver ;  ^  for,  if  an  action  were  brought  against 
the  receiver  by  his  employer,  that  part  of  the  account  which 
charged  the  receiver  would  be  evidence  against  him,  while  the 
entries  which  showed  his  discharge,  though  not  absolutely  inad- 
missible for  him,  would,  as  compared  with  the  entries  against 
his  interest,  be  entitled  to  very  little  weight ;  ^  and  even  if  it 
were  otherwise,  the  admission  of  the  receipt  of  money  would 
still  be  against  his  interest,  as  the  balance  in  his  favor  would 
thereby  be  diminished  to  the  extent  of  the  sum  admitted.^ 

§  231.  The  fact  that  the  declaration  of  a  deceased  person  was, 
taken  as  a  whole,  against  his  interest,  does  not  make 
evidence  all  that  it  incorporates  in  the  way  of  incidental   ent  matters 

statements,  not  in  themselves  self-disservins;.*     We  have   cannot  be 
'  o  so  proved. 

an  illustration  of  this  rule  in  a  case  in  which  the  ac- 
counts of  a  deceased  steward  were  tendered  in  evidence  for  the 
purpose  of  showing  that  former  lords  of  the  manor  had  been 
liable  to  pay  poor  rates  on  the  tithes.  On  one  side  of  these  ac- 
counts the  steward  acknowledged  the  receipt  of  rent  for  tithes 
from  a  tenant ;  and  on  the  other  side  was  an  entry  in  discharge 
of  the  former  item,  by  allowing  the  tenant  a  certain  sum  for  poor 
rates  on  the  tithes.  Mr.  Baron  Alderson,  before  whom  the  case 
was  tried,  rejected  the  second  entry,  on  the  ground  that  it  was 
not  directly  connected  with  the  first  item,  though  made  about 
the  same  time ;  but  he  added  that,  if  the  amount  charged  had 
been  stated  to  be  a  sum  less  by  the  deduction  of  the  opposite 
side  of  the  account,  it  might  have  been  admissible.^ 

§  232.  The  fact  that  better  evidence  could  be  had  does  not 
exclude  such  admission.     Thus,  entries  by  a  deceased    Such  tU-c- 
person,  against  interest,  have  been  admitted,  although    aXiiss/ble 
it  appeared  that  persons  were  living,  and  not  called,   {,g"tg';'gyi. 
who  were  acquainted  with  the  fact.     Hence,  entries  by    dence 
a  deceased  collector,  charging  himself  with  the  receipt   iiad. 

*  Rowc  V.  Brenton,  3  M.  &  R.  267,  from  which   this  section    is   ilorived  ; 

2G8  ;  Williams  v.   Geaves,  8  C.  &  P.  and  see  infra,  §  24  7. 

592,  per  Patteson,  J.  ;  R.  v.  Worth,  *  Rndd  v.  Wright,   1   Ph.  Ev.  314  ; 

4  Q.  B.  134,  per  Coleridge,  J.  ;  Clark  4  Y.  &   C.  Ex.  294  ;  Doe  v.   Beviss, 

V.  Wilmot,  1  Y.  &  C.  Ch.  R.  53.  7  C.  B.  45G  ;  Taylor's  Ev.  §  (514. 

2  See  2  Smith's  L.  C.  28f,.  6  K„iMrht  i;.  Waterford,   4   Y.  &  C. 

8  See  8  C.  &  P.  594,  per  Ludlow,  Ex.  283.    See  Marks  v.  Lahce,  3  Bing. 

Sergt.,  arguendo;  Taylor's  Ev.  §  G09,  N.  C.  408. 

231 


§  235.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

of  taxes,  were  received  as  evidence  against  a  surety  that  the 
money  had  been  paid  ;  althouf;jli  the  persons  who  paid  it  were 
living,  and  miglit  have  been  called,  and  although  the  entries  were 
contained  in  a  private  note-book,  and  not  a  public  account-book.^ 
Oral  as  well  as  written  declarations  are  receivable  in  this  cate- 
gory.2  Nor  is  it  necessary  that  the  declarant  should  have  been 
competent,  if  living,  to  testify  to  the  facts  stated  in  the  declara- 
tion.3 

§  233.  The  declarations  of  the  declarant  cannot  be  received 
,   to  prove  their  own  admissibility.     It  is  necessary  that 

Position  of  .      ,  .  1111  •  1 

declarant  extrmsic  evidence  should  be  given  to  show  that  the  per- 
proved  SOU  making  the  entry  or  declaration  was  in  the  situa- 
a  lunc  e.  ^^^^^  •  ^^  which  he  purports  to  be.  The  character  of  the 
party  making  the  entry  or  declaration  must  be  established  before 
the  entry  is  read,  unless  it  be  made  by  a  person  in  a  public  char- 
acter, in  which  case  due  appointment  will  be  presumed.^ 

§  234.  So,  where  the  writing  purports  to  have  been  by  an 
agent,  agency,  as  we  will  further  see,  must  be  first  shown .^  But 
entries  over  thirty  years  old,  produced  from  the  proper  custody, 
prove  themselves.^  And  books,  coming  from  the  proper  deposi- 
tary may  in  themselves  exhibit  primd  facie  proof  of  the  author- 
ity of  the  person  by  whom  they  are  made.'^ 

§  235.  The  question  now  before  us  becomes  of  interest  in  con- 
nection with  the  entries  of  agents  when  brought  into 
tion  must  vicw  for  the  purpose  of  charging  principals.  So  far  as 
hom™to^'*'^   this  touches  admissions  by  agents,  it  is  reserved  for  dis- 

imputed  cussion  in  other  sections.^  It  is  enough,  at  present,  to 
declarant.  &    '  r  ' 

say  that  where  an  account  is  sought  to  be  put  in  evi- 
dence as  the  self-disserving  declaration  of  a  deceased  person,  it 

1  Middleton  v.  Melton,  10  B.  &  s  j)q  Rutzen  v.  Farr,  4  Ad.  &  El. 
C.  317  ;  Powell's  Evidence  (4tli  ed.),  53.  See  Short  v.  Lee,  2  Jac.  &  W. 
201.     See,   also,   Rowe  v.  Brentou,  3     467. 

M.  &  R.  268.  6  Supra,  §§    194-95;  infra,  §   703  ; 

2  Stapylton  v.  Clough,  2E.&B.  933  ;  Doe  v.  Michael,  17  Q.  B.  276  ;  Wynne 
Fursdon  v.  Clogg,  10  M.  &  W.  572  ;     v.  Tyrwhitt,  4  B.  &  Aid.  376. 

R.v.  Birmingham,  1  B.  &  S.  763.  ">  Doe    v.  Thynne,    10   East,    206; 

«  Doe  i;.  Beviss,  7  C.  B.  456  ;  Wha-  Atty.  Gen.  v.  Stephens,  1   Kay  &  J. 

ley  V.  Carlisle,  17  Ir.  Law  R.  (N.  S.)  724  ;  Mayor  v.  Warren,  5  Q.  B.   773. 

792.  See  Brime  v.  Thompson,  C.  &  Marsh. 

*  Davies  v.  Morgan,  1  C.  &  J.  587;  36.     Supra,  §§  194-5. 

Powell's  Evidence,  4th  ed.  202.  ^  Sg^  inf,.ji^  §  1183. 
232 


CHAP.  IV.]  DECLARATIONS   OF   DECEASED   PERSONS.  [§  237. 

cannot  be  received  unless  it  be  proved  that  the  account  was 
either  written,  or  signed,  or  authorized,  or  adopted,  by  the  de- 
ceased person  made  chargeable  thereby  ;  and,  therefore,  where  a 
rental,  in  which  a  deceased  steward  was  debited  with  the  receipt 
of  certain  payments,  was  written  by  a  party  since  dead,  styling 
himself  clerk  to  such  steward,  the  court  refused  to  receive  it  as 
a  declaration  against  the  interest  of  the  steward,  as  no  parol  evi- 
dence had  been  given  to  show  that  he  ever  employed  the  writer 
to  make  the  entries  ;  and  it  was  equally  inadmissible  as  made 
against  the  interest  of  the  clerk,  because  it  did  not  purport  to 
charge  the  clerk. ^ 
1^  §  236.  But  it  is  not  necessary  that  the  accounts  should  be  in  the 
handwriting  of  the  alleged  deceased  declarant,  or  should  bear  his 
signature ;  they  will  be  received  in  evidence,  if  they  were  writ- 
ten by  him  either  wholly^  or  in  part,^  though  they  were  not 
signed  ;  or  if  they  were  signed  by  him,  though  they  were  writ- 
ten by  a  stranger.*  Nor  is  it  essential  that  they  should  be  writ- 
ten or  signed  by  the  deceased,  if  either  direct  proof  can  be  fur- 
nished that  they  were  written  by  his  authorized  agent,^  or  if  that 
fact  can  be  indirectly  established,  as,  for  instance,  by  showing 
that  the  deceased  subsequently  adopted  the  accounts  as  his  own, 
and  exhibited  them  at  an  audit.°  The  extreme  length  has  even 
been  reached  of  holding  that  it  does  not  exclude  such  evidence 
that  the  person  who  wrote  accounts  was  alive  at  the  time  of  the 
trial,  though,  in  such  case,  his  non-production  may  be  matter  of 
observation  to  the  jury.'^ 

§  237.    Statements  by  a  deceased  possessor  of  real  estate,  to 
the  effect  that  he  held  but  a  limited  interest  therein,    Statements 

.  in  dis])ar- 

are  admissible,  not  only  against  his  successors  in  title  or   nscniont  of 
possession,^  but  against  strangers.     It  is  not  within  the   ceivabio 
range  of  probability  that  a  man  sliould  inalce  a  false    "l^ailgers. 

1  De  Rutzen  v.  Farr,  4  A.  &  E.  53;  "  Doc  v.  Hawkins,  2  Q.   B.  212  ;  1 
5  N.  &M.  G17,  S.  C.  G.  &  D.  551,  5.    C.  :  Doe  v.  Mobbs, 

2  Rowe  V.  Brentoji,  3  M.  &  R.  268-  C.    &   Marsh.    1  ;   May.  of   Exeter  i'. 
270.  Warren,   5    Q.   B.    773;  Att.  Gen.   i-. 

"  Doe  V.  Colcombc,    C.   &    Marsh.  Stephens,  1  K:iy  .Sc  J.  710,  per  Wood, 

155,  per  Coleridge,  J.  V.  C. 

*  Doc  V.  Stacey,  6  C.  &  V.  130,  per  ^  •_,  q.  B.  217.  per  Patteson,  J. 

Tindal,  C.  J.  «  See  infra,  §  1156  et  seq.    Redman 

6  Bradley   v.    James,    13    Com.  B.  v.  Gery,  L.  R.  1   Q.  B.  D.  161. 
822.     Supra,  §  235. 

^  233 


§  238.]  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

understatement  of  his  title ;  and  such  admissions,  therefore,  are 
receivable  not  only  against  those  claiming  under  him,  but  against 
those  in  no  manner  of  privity  with  him.^  But  a  distinction 
has  here  been  taken  between  the  admissions  of  a  possessor  as 
to  the  limited  extent  of  his  title,  and  admissions  made  by 
him  as  to  incumbrances  or  claims  against  tlie  estate.  It  is 
very  improbable,  so  has  it  been  argued,  that  a  man  will  un- 
truly disparage  his  own  title  ;  but  it  is  not  at  all  unlikely  that  a 
tenant  for  years,  or  a  life  tenant,  would  untruly  admit  that  a 
right  of  way  or  other  easement  incumbered  the  land.^  Hence 
it  has  been  held  that  admissions  by  a  deceased  possessor  of  land 
going  merely  to  incumber  or  restrict  the  enjoyment  of  an  estate 
(as  distinguished  from  those  limiting  the  title),  cannot  be  re- 
ceived to  affect  strangers,  though  receivable  against  the  decla- 
rant's privies.^ 

VIII.  EXCEPTION  AS  TO  BUSINESS  ENTRIES  OF  DECEASED  PERSONS. 

§  238.  An  accountant,  or  other  business  agent,  may  be  re- 

Entriesby  girded  as  a  member  of  a  well  adjusted  business  ma- 

deceased  or  chine ;  noting^  in  the  proper  time,  and  in  the  proper 

sons  in  the  way,  what  it  is  his  duty  to  note.     If  he  has  no  personal 

course  of  .  ,  .  ,        .     .  .        , 

their  busi-  motivc  to  swerve  him,  the  inference  is  that  what  he 
be  ev^^^  tloes  in  this  way  he  does  accurately  ;  and  his  evidence, 
dence.  j£  there  be  nothing  to  impeach  it,  rises  in  authority  pre- 

cisely to  the  extent  to  which  he  is  to  be  regarded  as  a  mechanical 
and  self -forgetting  register  of  the  events  which  his  accounts  are 
offered  to  prove.  Hence  it  is  that  the  memoranda,  or  book  en- 
tries, of  an  officer,  agent,  or  business  man  when  in  the  course  of 
his  duties,  become  evidence,  after  his  decease,  or  after  he  has 
passed  out  of  the  range  of  process,  of  the  truth  of  such  entries ; 

1  Davies   v.  Pierce,   2    T.   R.    53  ;  Brooks,  61  Penn.   St.  407.      See  for 

Peaceable  v.   Watson,  4  Taunt.   18;  other  cases  fully  infra,  §§  1156-7. 

Carney.  Nicoll,  1  Bing.  (N.  C.)  430;  2  infra,  §  1161. 

Doe  V.  Jones,  1   Camp.    367  ;  Doe  v.  3  R.  y.  Bliss,  7  A.  &  E.  550  ;  Dan- 

Langfield,  16  M.  &W.  497;  Garland  iel  v.  North,   11    East,   375;   Scholes 

V.  Cope,  11  Ir.  L.   R.  514;   Mount-  ?;.  Chad  wick,  2  M.  &  Rob.  507  ;  Tickle 

noy  V.  Collier,  1  E.  &  B.  630;  Beedy  v.  Brown,   4   A.   &  E.   378  ;   Papen- 

V.  Macomber,  47  Me.   451;  Blake  v.  dick   v.  Bridgewater,  5  E.  &  B.  166  ; 

Everett,    1     Allen,     248  ;    Marcy    v.  Hill  v.   Roderick,  4  Watts  &  S.  221  ; 

Stone,  8  Cush.  4  ;  Spaulding  v.  Hal-  Pool   v.    Morris,   29  Ga.  374.     Infra, 

lenbeck,    35    N.    Y.    204;    Horn    v.  §1161. 

234 


CHAP.  IV.]       BUSINESS  ENTRIES   OF   DECEASED   PERSONS.  [§  239. 


subject,  however,  to  be  excluded  if  it  appear  that  in  making  the 
entries  he  was  not  registering,  but  manufacturing,  current  facts  ; 
and  provided  such  entries  were  original,  contemporaneous,  and 
in  the  line  of  the  writer's  duty.^ 

§  239.  Receipts  of  a  deceased  public  officer  have  been  held 
admissible,  by  force  of  this  rule,  although  such  receipts  are  not 
entered  in  the  course  of  business  in  a  book  kept  by  the  officer.^ 


1  Best's  Ev.  §  501  ;  Webster  v. 
Webster,  1  F.  &  F.  401  ;  Price  v. 
Earl  of  Torrington,  1  Salk.  285  ;  2 
Ld.  Ray.  873  ;  S.  C.  1  Smith's  Lead. 
Cas.  5th  ed.  277  ;  Doe  v.  Turford,  3 

B.  &  Ad.  890  ;  Rawlins  v.  Rickards, 
28  Beav.  370  ;  Bright  v.  Legerton,  2 
De  Gcx,  F.  &  J.  606  ;  Nichols  v. 
Webb,  8  Wheat.  326  ;  James  v. 
Wharton,  3  McLean,  492  ;  Beale  v. 
Pettit,  1  Wash.  C.  C.  241  ;  Cass  v. 
Bellows,  31  N.  H.  501  ;  Welsh  v. 
Barrett,  15  Mass.  380  ;  Union  Bank 
V.  Knapp,  3  Pick.  96  ;  Porter  v.  Jud- 
son,  1  Gray,  175  ;  Walker  v.  Curtis, 
116  Mass.  98  ;  Chenango  v.  Lewis,  63 
Barb.  Ill;  Livingston  r.  Arnoux,  56 
N.  Y.  518  ;  Pliiladel.  Bk.  v.  Ollicer, 
12  S.  &  R.  49;  Ridgway  v.  Bk.  12 
S.  &  R.  256  ;  Bland  v.  Warren,  65  N. 

C.  372  ;  Field  v.  Boynton,  33  Ga. 
239;  Clemens  v.  Patton,  9  Porter, 
289  ;  Stewart  v.  Conner,  9  Ala.  803  ; 
Mayson  v.  Beazley,  27  Miss.  106. 

2  "  Entries  and  memoranda,  made 
by  persons  since  deceased,  in  the  ordi- 
nary course  of  professional  and  oflicial 
employment,  are  competent  second- 
ary evidence  of  the  facts  contained 
in  tliem,  where  they  had  no  interest 
to  misrepresent  or  misstate  them.  1 
Greenl.  Ev.  §  115  ;  Nichols  v.  Webb, 
8  Wheat.  326.  They  are  admitted 
from  necessity.  In  Leland  v.  Cam- 
eron (31  N.  Y.  115),  the  entry  by  an 
attorney  in  his  register,  in  the  pro- 
ceedings in  the  action,  of  the  issuing 
of  an  execution  which  could  not  be 
found,  was   held,  the   attorney   being 


dead,  to  be  competent  evidence  of  the 
fact  that  the  execution  was  issued. 
Nor  is  it  necessary,  as  the  defendant 
claims,  that  the  entry  should  have 
been  made  in  a  book,  to  make  the  ev- 
idence admissible.  No  cases  have 
been  cited  which  proceed  upon  this 
distinction,  and  there  is  no  principle 
upon  which  it  can  be  supported.  See 
Porter  v.  Judson,  1  Gray,  1 75  ;  Doe  v. 
Turford,  3  B.  &  Ad.  898. 

"  The  receipt  given  by  the  sheriff 
in  this  case  related  to  a  fact  known  to 
him,  and  to  which,  if  living,  he  would 
have  been  competent  to  testify ;  it 
was  given  in  conformity  with  the 
usual  practice  in  transactions  involv- 
ing the  payment  of  money,  and  all 
the  parties  concerned  in  the  matter  to 
which  it  relates  are  dead.  The  gen- 
eral fact  of  redemption  shown  by  the 
receipt  is  corroborated  by  the  other 
facts  in  the  case.  The  long  delay  of 
the  purchaser  in  procuring  a  deed 
from  Westervelt,  who  was  living  as 
late  as  1860  ;  the  small  amount  for 
which  the  land  was  sold,  compared 
with  its  real  value;  the  liolding  under 
Price's  title  of  these  and  the  other 
premises  sold  on  the  execution,  for 
eighteen  years,  no  claim  at  any  time, 
so  far  as  it  appears,  liaving  been  made 
that  the  other  parcels  of  land  sold  at 
the  same  time  had  not  been  redeemed, 
nor  any  assertion  of  right  to  these 
premises  by  the  purchaser  until  the 
slurill's  deed  was  executed,  are  cir- 
cumstances supporting  the  conclusion 
that   a  redemption  was  made.      It  is 

235 


§  240.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


§  240.  The  book  entries  of  a  deceased  clerk  have  on  this 
principle  been  constantly  admitted  ;  the  fact  that  they  are  made 
as  original  entries  in  the  course  of  business  being  first  shown.^ 
Tlie  rule  has  been  extended  to  the  entries  of  a  clerk  out  of  the 
jurisdiction  of  the  court,^  though  if  the  witness  is  procurable, 
the  entry  is  of  coui-se  inadmissible.^ 


not  necessary  to  hold  that  receipts 
of  public  officers  for  money  paid  to 
them,  which  they  are  authorized  to 
receive,  are  primary  evidence  of  the 
fact  of  payment  ;  but  they  are  com- 
petent secondary  evidence,  after  the 
officer's  death,  within  the  general 
principle  upon  which  entries  and 
memoranda  of  persons,  since  de- 
ceased, are  admitted.  Harrison  v. 
Blades,  3  Camp.  457 ;  Jones  v.  Car- 
rington,  1  C.  &  P.  327;  Ibid.  497  ; 
Lessee  of  Cluggage  v.  Swan,  4  Binn. 
150. 

"  The.  receipt  was  admissible  on 
another  ground.  The  officer  thereby 
charged  himself  with  the  money,  and 
rendered  himself  accountable  for  it  to 
the  creditor.  It  Avas  an  admission 
against  his  interest,  made  in  respect 
to  a  matter  pertaining  to  his  official 
duty.  Written  memoranda,  made  un- 
der such  circumstances,  may  reason- 
ably be  assumed  to  be  truthful,  and 
are  evidence  after  the  death  of  the 
party  who  made  them,  as  well  of  the 
fact  against  his  interest,  as  of  the 
other  incidental  and  collateral  facts 
and  circumstances  mentioned,  and  are 
admissible,  irrespective  of  the  fact 
whether  any  privity  exists  between 
the  person  who  made  them  and  the 
party  against  whom  they  are  offered. 
Doe  u.  Robson,  15  East,  32;  Davies 
V.  Humphreys,  6  M.  &  W.  153;  Per- 
cival  V.  Nanson,  7  Exch.  1  ;  Marks  v. 
Colnaghi,  3  Bing.  N.  C.  408;  Hig- 
ham  I'.  Ridgway,  1  East,  109.  The 
general  presumption  is  that  an  instru- 
ment was  made  at  its  date.  Costigan 
V.  Gould,  5  Den.  290.     Some  excep- 

236 


tions  exist  which  it  is  not  now  mate- 
rial to  notice.  Houliston  v.  Smyth,  2 
C.  &  P.  22  ;  Roseboom  v.  Bellington, 
17  John.  182.  The  date  of  the  pay- 
ment in  the  receipt  was  not  collateral 
to  the  main  purpose  for  which  it  was 
given.  The  time  of  payment  was  mate- 
rial, as  the  redemption  must  be  made 
within  the  year,  and  the  true  date  of 
the  transaction  would  naturally  be 
stated  in  it."  Andrews,  J.,  Livingston 
V.  Arnoux,  56  N.  Y.  518.  See,  as  to 
presumption  from  date,  infra,  §  977. 
And  see  Kennedy  v.  Doyle,  10  Allen, 
165,  quoted  infra,  §  654. 

1  R.  V.  St.  Mary's,  Warwick,  22 
L.  J.  M.  C.  109;  Pritt  v.  Fairclough, 
3  Camp.  305  ;  Doe  v.  Langfield,  16 
M.  &  W.  497;  Fendall  v.  Billy,  1 
Cranch  C.  C.  87  ;  Owen  v.  Adams,  1 
Brock.  72  ;  Beaver  v.  Taylor,  1  Wall. 
637;  Gale  v.  Norris,  2  McLean,  469; 
James  v.  Wharton,  3  McLean,  492; 
Bacon  i\  Vaughn,  34  Vt.  73 ;  Lap- 
ham  V.  Kelly,  35  Vt.  195  ;  Jones  v. 
Howard,  3  Allen,  223;  Halliday  v. 
Martinet,  20  Johns.  R.  168  ;  Brews- 
ter V.  Doane,  2  Hill,  537;  Nichols  v. 
Goldsmith,  7  Wend.  160;  Clarke  v. 
Magruder,  2  Har.  &  J.  77  ;  Lewis  v. 
Norton,  1  Wash.  (Va.)  76;  Freeland 
V.  Field,  6  Call,  12;  Bland  v.  Warren, 
65  N.  C.  372  ;  Batre  v.  Simpson,  4 
Ala.  305;  Everly  v.  Bradford,  4  Ala. 
371  ;  Grant  v.  Cole,  8  Ala.  519. 

^  James  v.  Wharton,  3  McLean, 
492;  Hodge  v.  Higgs,  2  Cranch  C.  C. 
552;  Coolidge  v.  Brigham,  5  Mete.  68; 
contra,  Brewster  v.  Doane,  2  Hill 
(N.  Y.),  537. 

8  Nichols  V.  Webb,  8  Wheat.  326. 


CHAP.  IV.]        BUSINESS   ENTRIES    OF   DECEASED   PERSONS.  [§  242. 

§  241.  As  illustrations  of  the  rule  may  be  mentioned  the  re- 
ception (not  merely  because  it  was  a  business  entry,  but  because, 
as  we  have  already  seen,  it  was  against  interest)  of  the  entry  by 
a  deceased  solicitor,  in  his  diary,  of  a  note  stating  his  attendance 
on  a  client  on  a  certain  day  for  the  purpose  of  executing  a  deed, 
the  object  being  to  prove  the  due  execution  of  the  deed ;  ^  and 
for  the  purpose  of  proving  the  sending  a  letter,  of  an  insertion, 
in  the  plaintiff's  letter  book,  by  a  deceased  clerk,  of  a  memo- 
randum stating  the  sending  of  the  letter  in  question,  which  was 
duly  copied  in  the  letter  book.^ 

§  242.  In  the  case  which  Mr.  Smith  has  selected  as  leading  on 
this  topic, '^  as  reported  in  Salkeld,  the  plaintiff,  being  a  brewer, 
brought  an  action  against  the  Earl  of  Torrington  for  beer  sold 
and  delivered  ;  and  the  evidence  given  to  charge  the  defendant 
was,  that  the  usual  way  of  the  plaintiff's  dealing  was,  that  the 
draymen  came  every  night  to  the  clerk  of  the  brew-house  and 
gave  an  account  of  the  beer  they  had  delivered  out,  which  he 
set  down  in  a  book  kept  for  that  purpose  to  which  the  draymen 
set  their  names  ;  that  the  drayman  was  dead,  but  that  this  was 
his  hand  set  to  the  book.  This  was  held  good  evidence  of  a 
dehvery,  but  otherwise  of  the  shop-book  itself  singly,  without 
more.*  In  a  modern  case,  of  high  authority,^  the  lessor  of  the 
plaintiff  (the  suit  being  ejectment)  had  instructed  A.  to  serve 
the  defendant  with  notice  to  quit.  A.  intrusted  the  commission 
to  his  partner  B.,  who  had  not  served  such  notices  before.  B. 
prepared  three  notices  to  quit  (two  of  them  being  for  service  on 
other  persons),  and  as  many  duplicates.  He  then  went  out,  and 
on  his  return  delivered  to  A.  three  duplicate  notices  (one  of 
which  was  a  duplicate  of  the  notice  to  the  defendant),  indorsed 
by  B.  It  was  proved  that  the  two  other  notices  had  been  served 
on  the  persons  for  whom  they  were  intended  ;  that  tlie  defendant 
had  subsequently  requested  A.  that  he  might  not  be  compi'lled 
to  leave,  and  that  it  was  the  invariable  practice  for  A.  and  B.'s 

^  Rawlins    v.    Rickards,    28    Bcav.  jccted  tlu'  entry  of  circumcision  by  a 

370.     See  Bright  v.  Legerton,   2   De  deceased  diief  rabbi  in  the  book  kept 

Gex,  F.  &  J.  606 ;  modifying  S.  C.  20  for  such  purpose. 

Beav.  60.     See  as  to  maps,  §  6Go.  «  Price  r.  Torrington,  1   S.ilk.  285  ; 

2  Pritt  V.  Fairclough,  3  Camp.  305.  2  Ld.  Ray.  893;  1  Smith  L.  C.  277. 

See,  however,  Davis  v.  Lloyd,  1  C.  &  *  Powell's  Kvidencc,  Ith  ed.  207. 

Kir.  275,  in  which  Lord  Denman  re-  *  Doe  i:  Turford,  3  B.  &  Ad.  890. 

237 


§  244.]  Tni<:  law  of  evidence.  [book  i. 

clerks,  who  usually  served  the  notices  to  quit,  to  indorse,  on  a 
duplicate  of  such  notice,  a  memorandum  of  the  fact  and  time  of 
service.  It  was  held,  on  these  facts,  that  the  third  duplicate  was 
admissible  to  prove  that  the  notice  had  been  served  on  the  de- 
fendant. Parke,  B.,  said  :  "  It  was  proved  to  be  the  ordinary- 
course  of  this  oflfice,  that  when  notices  to  quit  were  served,  in- 
dorsements like  that  in  question  were  made  ;  and  it  is  to  be  pre- 
sumed that  the  principal  observed  the  rule  of  the  office  as  well 
as  the  clerks."  And  Taunton,  J.,  added  :  "  A  minute  in  writ- 
ing like  the  present,  made  at  the  time  when  the  fact  it  records 
took  place,  by  a  person  since  deceased,  in  the  ordinary  course  of 
his  business,  corroborated  by  other  circumstances,  which  render 
it  probable  that  that  fact  occurred,  is  admissible  in  evidence."  ^ 

§  243.  But  such  entries  must  be  made  under  a  sense  of  busi- 
ness responsibility.  If  the  mere  private  memoranda  of  the  writ- 
er, they  cannot,  unless  self-disserving,  be  received. ^  Thus  in  a 
case  before  the  queen's  bench,^  to  prove  a  settlement  by  hiring 
and  service,  the  following  document,  made,  according  to  personal 
custom,  in  the  memorandum  book  and  handwriting  of  the  pau- 
per's deceased  master,  was  tendered  :  "  April  4,  1824.  W.  W. 
(the  pauper)  came,  and  to  have  for  the  half  year  40s.  Septem- 
ber 29.  Paid  this  £2.  October  27.  Ditto  came  again  ;  and  to 
have  Is.  per  week ;  to  March  1825,  is  21  weeks  2  days,  £1  Is. 
6d.  2oth.  Paid  this."  The  court  held  this  evidence  to  have 
been  rightly  rejected.  Lord  Denman  said:  "In  a  case  of  this 
kind  the  entry  must  be  against  the  interest  of  the  party  who 
writes  it,  or  made  in  the  discharge  of  some  duty  for  which  he  is 
responsible.  The  book  here  does  not  show  any  entry  operating 
against  the  interest  of  the  party.  The  memorandum  could  only 
fix  upon  him  a  liability  on  proof  that  the  services  referred  to 
had  been  performed;  and  whether,  on  dispute,  a  jury  would 
have  found  him  liable  for  the  sum  so  entered,  or  more  or  less, 
we  cannot  say."  ^ 

§  244.  So,  more  recently,  it  has  been  held  that  the  entry  must 
not  only  be  made  at  once,  but  confined  to  the  matters  which  it 
is  the  duty  of  the  writer  to  record.^ 

1  Powell's  Evidence,  4th  ed.  208.  ^  gmith  y.  Blakey,  L.  R.  2  Q.  B. 

-  Avery  v.  Avery,  49  Ala.  193.  326;  36  L.  J.  Q.  B.  160;   15  W.  R. 

8  R.  V.  Worth,  4  Q.  B.  133.  492.     Powell's  Evidence,  4th  ed.  209. 

*  Powell's  Evidence,  4th  ed.  214. 

238 


CHAP.  IV.]    BUSINESS  ENTRIES  OF  DECEASED  PERSONS.      [§  246. 

§  245.  Oi'iginality  in  respect  to  such  entries  is  requisite  as  it  is 
in  all  cases  in  which  book  entries  are  offered  as  pri-    „     . 

.  .  -^  Lntnes 

mary  proof.^  Thus,  in  an  action  for  goods  sold,  where  must  be 
the  only  evidence  of  delivery  was  an  entry  made  by  ^ 
a  witness,  by  the  direction  of  a  deceased  foreman,  who  was  not 
present  when  the  goods  were  delivered,  but  who,  in  the  course  of 
business,  had  himself  been  informed  of  the  delivery  by  the  per- 
son whose  duty  it  was  to  deliver  the  goods,  and  who  was  also 
dead,  the  entry  was  rejected.^  Nor  can  such  entries  be  varied 
by  proof  of  subsequent  facts,  for  this  would  be  not  only  to  vary 
them,  but  to  destroy  their  originality.^ 

§  246.  We  shall  have  occasion  hereafter  to  see  that  the  orig- 
inal entries  of  deceased  parties  in  their  own  books  are   Entries 
held  in  several  jurisdictions  in  the  United  States,  ad-   con^empo- 
missible,  even  though  self-serving,  when  contempora-    "^fj^""?!! 
neous,  and  when  confined  to  a  transaction  within  the   P"'"'- 
business  of    the   party   making  the  entry.*     The  same    limita- 
tion is  applicable  to  the  class  of  entries  now  specifically  before 
us.     "It  is  to  be  observed,"  said  Parke,  B.,  when  arguing  this 
point,  in  a  case  just  cited,^  "  that  in  the  case  of  an  entry  against 
interest,  proof  of  the  handwriting  of  the  party,  and  his  death, 
is  enough  to  authorize  its  reception  ;  at  whatever  time  it  is  made, 
it  is  admissible  ;  but  in  the  other  case  [^scil.  in  declarations  in 

1  See  infra,  §§  682,  688.  of  a  duty,  so  far  as  regards  tlu-ir  ad- 

2  Brain  v.  Preece,  11  M^  &  W.  773.  niis.<il)ility.  But  to  dcduee  from  this 
8  Thus  where,  in  order  to  prove  doctrine  that  whatever  is  said  sub- 
service  of  a  notice  to  quit;  Stapylton  sequently  to  the  time  of  making  the 
V.  Clough,  2  E.  &  B.  933;  a  duplicate  entry  respecting  the  transaction  may 
notice,  indorsed  with  the  day  of  ser-  be  admitted  in  evidence,  would  lead 
vice,  and  signed  in  the  course  of  duty  to  the  greatest  injustice.  How  can  it 
by  a  deceased  agent,  was  tendered  ;  be  said  that  the  verbal  declaration  of 
and  it  was  also  sought  to  explain  and  Jackson  was  made  in  the  course  of 
vary  the  particulars  of  the  indorse-  his  duty?  What  he  did  in  disdiarg- 
ment  by  evidence  of  subsequent  oral  ing  his  (hity  was  signing  the  written 
declarations  made  by  the  deceased,  entry.  What  ho  may  bal)l)Ie  dining 
But  the  court  held  that  the  indorse-  the  rest  of  his  life  on  the  subject  can- 
mcnt  must  be  received  as  it  stood  ;  not  be  admitted  in  evidence,  contra- 
and  Lord  Campbell  said  :  "  I  agree  dieting,  as  it  does  here,  wliat  he  has 
with  what  I  am  reported  to  have  said  before  written."  Powell's  Evidence, 
in  the  Sussex  Peerage  case,  that  there  4th  ed.  213.  As  to  maps,  see  §  GG.'i. 
is  no  distinction  between  verbal  and         *  See  infra,  §  678  e^  .<!<"7. 

written  declarations  made  in  the  course         ^  Doe  v.  Turford,  3  B.  &  Ad.  890. 

239 


§  248.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

the  course  of  business],  it  is  essential  to  prove  that  it  was  made 
at  the  time  it  purports  to  bear  date  :  it  must  be  a  contempora- 
neous entry."  So  it  is  said  by  Tindal,  C.  J.,  "  If  there  were 
any  doubt  whether  the  entry  were  made  at  the  time  of  the  trans- 
action, the  case  ought  to  go  down  to  trial  again."  ^ 

§  247.  In  a  case  argued  in  the  exchequer  chamber,  where  an 
But  cannot  ^ntry  of  a  deceased  under  sheriff  was  offered  to  prove 
prove  in-      q^^^  arrest,^  Lord  Denman,  in  delivering  iudgment,  said  : 

dependent  .    .  ,  t>  j       o 

matter.  ''  We  are  all  of  opinion  that,  whatever  effect  may  be 
due  to  an  entry,  made  in  the  course  of  any  office,  reporting  facts 
necessary  to  the  performance  of  a  duty,  the  statement  of  other 
circumstances,  however  naturally  they  may  be  thought  to  find  a 
place  in  the  narrative,  is  no  proof  of  those  circumstances.  Ad- 
mitting", then,  for  the  sake  of  argument,  that  the  entry  tendered 
was  evidence  of  the  fact,  and  even  of  the  day  when  the  arrest 
was  made  (both  which  facts  it  might  be  necessary  for  the  officer 
to  make  known  to  his  principal),  we  are  all  clearly  of  opinion 
that  it  is  not  admissible  to  prove  in  what  particular  spot  within 
the  bailiwick  the  caption  took  place,  that  circumstance  being 
merely  collateral  to  the  duty  done."  In  submission  to  this  view 
an  entry  by  a  deceased  steward  of  a  matter  not  in  the  course  of 
his  duty,  but  only  important,  in  his  opinion,  to  his  master's  in- 
terest, has  been  rejected.^ 

§  248.  So  the  declaration  of  a  deceased  surveyor,  with  regard 
So  of  sur-  to  lines  run  by  him  in  discharge  of  his  official  duties,  are 
notes^  ^        admissible ;  ^  and  so  of  the  field  ftotes  and  other  memo- 

^  Poole  V.  Dicas,  1   Bing.    (N.   C.)  nasconi,  has  been  much  criticised  by 

649.     See,  also,  Short  v.  Lee,  2  Jac.  learned  judges  and  other  authorities; 

&  W.  475;  Doe   v.  Beviss,   7  C.  B.  but  the  principle  on  which  it  was  given, 

456;  Doe   v.    Skinner,   3  Ex.  R.   88;  namely,  that  the  act  was  not  in  the 

Cass  V.  Bellows,  31  N.  H.  501 ;  Porter  course  of  a  duty,  but  collateral  to  it,  is 

V.   Judson,  1    Gray,    1 75 ;  Walker   v.  recognized  as  settled.    Poole  v.  Dicas, 

Curtis,   116    Mass.    98;  Livingston  v.  1  Bing.  (N.  C.)  649;   Smith  i'.  Blakey, 

Arnoux,   56  N.  Y.  518;  Forsythe  v.  L.  R.   2  Q.  B.  326;  36  L.  J.    Q.  B. 

Norcross,  5  Watts,  432.  160;  15  W.  R.  492."     And  see  Perci- 

^  Chambers  v.  Barnasconi,  1  C,  M.  val  v.  Nanson,  7   Ex.  R.  3 ;  Powell's 

&R.  368;  1  Tyr.  335;  4  Tyr.  531.  Evidence,   4th   ed.    211.     See' supra, 

8  Doe  V.  Skinner,  2  Ex.  384;  Doe  §  231. 

V.  Whittcomb,  6  Ex.  601.    "  It  is  right  *  Birmingham  v.  Anderson,  40  Penn. 

to  observe  that  the  decision  on  the  St.  506.    See  Bonnet  r.  Devebaugh,  3 

particular  facts  in  Chambers  v.  Ber-  Binn.  175. 
240 


CHAP.  IV.] 


ENTRIES  BY  DECEASED  PERSON. 


[§  251. 


randa  of  a  deputy  surveyor.^     Such  entries,  however,  must  be 
identified  in  order  to  be  admitted.^ 

§  249.  So  notes  of  deceased  counsel  of  a  former  trial  are  ad- 
missible,^  and  so  of  counsel  or  other  officers  who  are    Soofcoun- 
out  of  the  reach  of  the  process  of  the  court ;  *  or  have   oUier"offi- 
become  insane  ;  ^  and  so  of  deceased  counsel,  in  relation   ^^'■^• 
to  office  business,  in  order  to  corroborate  other  witnesses.^ 

§  250.  The  rule  has  been  extended  so  as  to  admit  a  bank  mes- 
senger's entries  in  his  book,  recording  notices  given  him  as  mes- 
senger, after  he  has  absconded,  or  is  from  any  cause  out  of  reach 
of  process.''' 

§  251.  The  entries  in  the  books  of  deceased  notaries  are  ad- 
missible, under  the  general  rule,  when   made   in   the   So  of  nota- 
course  of  their  business ;  ^  and  so  of  entries  made  in   [^es.^"' 
notaries'  books  by  deceased  clerks.^ 

1  Walker  v.  Curtis,  116  Mass.  98;     Halliday  v.  McDougall,  20  Wend.  81, 


McCormick  v.  McMurtrie,  4  Watts, 
192;  Goddard  v.  Gloninger,  5  Watts, 
209  ;  Russell  v.  Werntz,  24  Penn.  St. 
337;  McCausland  v.  Fleming,  63  Penn. 
St.  36,  See  Ellicott  v.  Pearl,  1  Mc- 
Lean, 206  ;  Ayer  v.  Sawyer,  32  Me. 
163;  Ross  v.  Rhoads,  15  Penn.  St. 
163;  Ijams  v.  Hoffman,  1  Md.  423; 
Richardson  v.  Carey,  2  Rand.  (Va.) 
87;  Free  v.  James,  27  Conn.  77. 


264;  Gawtry  v.  Doane,  51  N.  Y.  90 
Bank  V.  Cooper,  1  liar.  (Del.)  10 
Wetlierall  v.  Claggett,  28  Md.  465 
Bodley  v.  Scarborough,  6  Miss.  729 
Duncan  v.  Watson,  10  Miss.  121 
but  see  Williamson  v.  Patterson,  2Mc- 
Cord,  132.     Supra,  §  123. 

^  "  The  entries  of  the  deceased  clerk 
in  the  register  of  the  notary,  made  in 
the  ordinary  and  usual  course  of  busi- 


2  Free  v.  James,  27  Conn.  77;  Bla-     ness,  were  properly  received   in   evi- 


den  V.  Cockey,  1  Har.  &  M.  230;  Mee- 
han  V.  Williams,  48  Penn.  St.  238. 
«  Supra,  §  180. 

*  Alter  V.  Berghaus,  8  Watts,  77; 
Hay  V.  Kramer,  2  Watts  &  S.  137; 
Flanagin  v.  Leibert,  Bright.  (Penn.) 
61  ;  though  see  Love  v.  Pay  ton,  1 
Overt.  255. 

s  Union  Bank  v.  Knapp,  3  Pick.  96. 

^  Mofl'at  V.  Moflfat,  10  Bosw.  (N. 
Y.)  468. 

T  Welsh  V.  Barrett,  15  Mass.  380 ; 
North  Bank  v.  Abbot,  13  Pick.  465  ; 
Shove  V.  Wiley,  18  Pick.  558  ;  Wash- 
ington Bank  v.  Prescott,  20  Pick.  339. 

*  Suttou  V.  Gregory,  Pea.  Add.  Cas. 
180;  Poole  v.  Dicas,  1  Bing.  (N.  C.) 
649;    Homes  v.    Smith,    16  Me.  181; 

VOL.   I.  16 


dence.  The  entries  were  made  in  a 
book  kept  for  the  notary  for  that  pur- 
pose by  the  clerk,  whose  duty  it  was 
to  transact  the  particular  business  and 
to  make  the  entries.  It  is  not  ques- 
tioned that  the  clerk  was  competent 
to  make  presentment  and  demand  of 
the  note,  so  as  to  charge  the  indorser. 
The  entries  made  by  a  decea«od  clerk 
under  such  circumstances  are  the  best 
attainable  evidence.  They  are  mado 
under  such  circumstances  as  to  furnish 
a  strong  presumption  that  they  aro 
true,  and  they  are  received  to  pre- 
vent a  failure  of  justice,  and  because 
public  convenience  and  the  interest 
of  trade  and  commerce  demand  it. 
In  Welch  v.  Barrett  (15  Mass.  3  79), 

241 


§  253.] 


THE  LAW   OF   EVIDENCE. 


[book  I. 


VIII. 


EXCEPTION  AS  TO  GENERAL  REPUTATION  WHEN    SUCH  IS 
MATERIAL. 


§252. 


General 

reputation 

admissible 

to  bring 

home 

knowledge 

to  a  party. 


To  prove  cognizance  of  a  particular  fact,  it  has  been 
lield  admissible,  under  cii-cumstances  to  be  hereafter 
noticed,  to  show  that  such  fact  was  at  the  time  gen- 
erally known  and  talked  about  in  the  neighborhood 
where  tlie  party  in  question  resided,  or  was  a  matter  of 
common  reputation  in  the  business  community  to  which 
both  parties  belonged.^  It  is  on  this  ground  that  proof  of  noto- 
rious usage  has  been  received,^  as  well  as  evidence  of  character, 
when  character  is  introduced  as  infecting  another  with  notice.^ 
§  253.  But  evidence  of  general  reputation  must  be  in  such 
cases  received  only  as  one  among  other  cumulative 
modes  of  proving  the  condition  of  a  particular  person's 
mind  as  to  a  certain  issue.  General  reputation  is  in- 
admissible to  prove  any  objective  fact.     Thus,  when  the  ques- 


But  inad- 
missible to 
prove 
facts. 


the  book  of  the  messenger  of  a  bank, 
not  a  notary,  who  was  dead,  in  which 
in  the  course  of  his  duty  he  entered 
memoranda  of  demands  and  notices 
to  the  promisors  and  indorsers  upon 
notes  left  in  the  bank  for  collection, 
was  received  as  evidence  of  a  demand 
of  the  maker  and  notice  to  the  de- 
fendant as  indorser  of  a  note  so  left 
for  collection.  In  Nichols  v.  Gold- 
smith, 7  Wendell,  162,  the  memoran- 
dum of  a  deceased  cashier  of  a  bank 
who  frequently  notified  indorsers  of 
non-payment  of  notes  in  the  name  of 
the  acting  notary  of  the  bank,  that  on 
a  certain  day  he  sent  notice  by  mail 
to  an  indorser,  was  held  to  be  compe- 
tent, and  prima  facie  suflicient  evi- 
dence to  charge  the  indorser.  In 
Sheldon  v.  Benham,  4  Hill,  129,  it 
was  held  that  the  memorandum  of  a 
deceased  teller  of  a  bank,  made  in  the 
usual  course  of  his  employment,  is 
competent  evidence  in  proving  a  de- 
mand by  him  of  the  maker  of  a  note 
and  notice  to  the  indorsers,  and  this 
whether  he  attended  to  the  business 

242 


on  the  retainer  of  a  notary  or  as  part 
of  his  duty  to  the  bank.  But  it  is 
claimed  that  the  common  law  rule, 
which  admits  this  species  of  evidence, 
is  abrogated  by  the  provisions  of  the 
Revised  Statutes  (2  R.  S.  284,  §§  46, 
47,)  which  relate  to  the  proof  of  entries 
made  by  deceased,  insane,  or  absent 
notaries.  It  is  a  sufficient  answer  to 
this  claim  that  the  entries  proved  in 
this  case  were  not  those  of  a  deceased 
notary,  and  hence  were  in  no  way  af- 
fected by  the  statute.  They  were  com- 
petent common  law  evidence,  and  were 
received  as  such."  Earl,  C,  Gawtry 
V.  Doane,  57  N.  Y.  90. 

^  Sheen  v.  Bumpstead,  2  H.  &  C. 
193;  Lee  v.  Kilburn,  3  Gray,  594; 
Benoist  v.  Darby,  12  Mo.  196  ;  Ward 
V.  Herndon,  5  Port.  382  ;  Jones  ?'. 
Hatchett,  14  Ala.  743  ;  Stallings  v. 
State,  33  Ala.  425;  and  cases  cited 
infra,  §  254.  See,  however,  Brad- 
bury I'.  Bardin,  34  Conn.  452  ;  and 
Lockhardt  v.  Jelly,  19  L.  T.  N.  S.  659. 

2  Infra,  §  962. 

8  Supra,  §  49. 


CHAP.  IV.]  HEARSAY  :  REPUTATION.  [§  254. 

tion  is  whether  B.  had  reasonable  grounds  to  believe  A.  to  be  in- 
solvent, it  is  admissible  to  prove,  as  one  among  other  links,  that 
it  was  generally  reputed  through  the  neighborhood  that  A.  was 
utterly  bankrupt.^  But  to  prove  such  insolvency,  or  to  prove 
any  other  objective  fact,  general  reputation  cannot  be  received.^ 
So  evidence  of  a  rumor  is  inadmissible  to  justify  a  slander.^  On 
the  other  hand,  in  trespass  for  destroying  a  picture,  when  the 
plea  was  not  guilty,  and  the  defence  that  the  picture  was  a  libel 
on  the  defendant's  sister  and  brother-in-law,  and  that  he  had 
therefore  destroyed  it,  Lord  EUenborough  held,  "  that  the  dec- 
larations of  the  spectators  while  they  looked  at  the  picture  in  the 
exhibition  room  were  evidence  to  show  that  the  figures  portrayed 
were  meant  to  represent  the  defendant's  sister  and  brother-in- 
law."  * 

§  254.  It  may  happen  that  a  question  at  issue  is  whether  cer- 
tain things  were  said  at  a  particular  time,  independently 
of  the  truth  of  what  is   thus  said.     If  so,  proof  that   admissible 
such  things  were  said  is  admissible,  though   hearsay,   issue  is 
The  question,  for  instance,  is,  whether  certain  acts  of     '^'^'^^^y- 
violence  are  excusable ;  and  on  such  an  issue  it  would  be  admis- 
sible, for  the  reason  here  given  (if  for  no  other),  to  prove  certain 
exclamations  of  terror  or  of  threat,  without  calling  the  persons 
by  whom  such  exclamations  were  uttered.^     So  when  the  issue  is 
whether   a  railroad  officer   acted   prudently  at  the   time  of   a 
collision,  there  can  be  no  question  that  cries  of  alarm  uttered  at 
the  time,  or  even  telegrams  delivered  an  hour  or  two  before,  could 
be  received,  if  relevant,  without  calling  the  persons  from  whom 
either  cries  or  telegrams  issued.     So  when  the  issue  is  whether 
a  bankrupt  has  denied  himself,  answers  given  at  his  door,  deny- 

1  Lcc  V.  Kilburn,  3  Gray,  594;  Ward     Mo?scr,  32  Ala.  551 ;  Vauglian  r.  War- 
V.   Ilerndon,   5   Port.   382;  Angell  v.      nell,  28  Tex.  119. 

Rosenbury,  12  Mich.  241.  «  Lockbardt  u.  Jelly,   19  L.  T.   N. 

2  Heath   u.  West,  2G   N.    II.    191;      S.  659. 

Hicks  u.  Cram,  17  Vt.  449;   Goddard  *  I>n   Rost  v.    Beresfoixl,   2   Camp, 

u.  Pratt,  16  Pick.  412;  Trowbridge  I'.  511;    rowell's    Evidence    (4tU    ed.), 

Wheeler,  1  Allen,  162;  Baldwin  v.  R.  148. 

R.  4  Gray,  333;  Dunbar  v.  Mulry,  8  '^  See  Com.     v.    Daley,    Appen.  to 

Gray,    163;  Martin  v.   Good,  14  Md.  Whart.  on   Homicide;  U.  v.  Vincent, 

398;  Molyneaux  t;.  Collier,  13  Ga  406;  9  C.  &  P.  275;  Redl'ord  v.  Birley,  3 

Blevins  v.  Pope,  7  Ala.  371;  Walker  Stark.  88. 
V.    Forbes,    25    Ala.   139  ;    Mosscr   r. 

243 


§  257.]  THE   LAW   OF   EVIDENCE.  [BOOK  I. 

ing  him,  can  be  proved  without  calling  the  persons  who  gave 
the  answers.^ 

It  is  often  important,  also,  to  ascertain  the  condition  of  a 
party's  mind  at  a  particular  time.  The  claimant  in  the  Tich- 
borne  case,  to  take  another  illustration,  when  in  Australia,  con- 
ceived the  idea  of  coming  to  England  to  claim  the  Tichborne 
estates ;  and  it  became  material,  therefore,  to  put  in  evidence 
the  statements  made  to  him,  by  attorneys  and  others,  as  to  the 
condition  of  the  Tichborne  family  ;  the  belief  of  the  mother  in 
the  recovery  of  her  lost  son  ;  and  the  peculiar  characteristics 
which  this  son  was  expected,  should  he  return,  to  exhibit.  A 
collision  occurs  in  a  hotel  in  New  York,  in  which  two  men,  each 
armed,  exchange  shots.  One  is  killed ;  and  the  question  comes 
up  as  to  who  was  the  aggressor.  It  is  admissible,  both  as  to  the 
defendant  and  the  deceased,  to  prove  that  statements  had  been 
made  to  each  of  a  character  making  it  prudent  for  him  to  go 
armed.^  In  fine,  any  facts,  hearsay  or  not,  which  go  to  explain 
the  condition  of  a  person's  mind,  when  such  condition  is  at  issue, 
may  be  received.^ 

§  255.  As  value,  in  its  business  sense,  consists  largely  of  the 
Value  may  Opinions  of  persons  familiar  with  a  market,  and  as  these 
by  hear-  Opinions  are  made  up  in  a  measure  of  what  is  said  by 
^^y-  others,  hearsay  is  a  primary  evidence    of  value.     In 

proving  value,  therefore,  it  is  admissible  to  resort  to  hearsay.^ 
Character  ^  ^^^'  Whenever   character  is  at  issue,  then,  as  is 

may  be        elsewhere  more  fully  seen,  evidence  of  general  reputa- 

proved  by         ....  •'  ... 

general        tiou   IS   admissible.     Reputation   is  in  such  sense  the 
repu  a  ion.    ^^^_^  niode  in  which  character  can  be  exhibited  to  us.^ 

IX.   HEARSAY  TO  REFRESH   MEMORY. 

§  257.  It  may  be  that  a  witness's  memory  is  uncertain  as  to 

1  Crosby  v.  Percy,  1  Taunt.  3G4.  •*  See  infra,  §§  447-450;  thougli  see 
See  Key  v.  Shaw,  8  Bing.  320.  supra,  §  175. 

2  See  this  topic  discussed  in  Whart.  s  gg^  supra,  §  49  ;  Fountain  v. 
on  Homicide,  §§493,  694.  Boodle,    3    Q.   B.    5 ;     Humphrey   v. 

8  See   supra,  §  252;    infra,   §  672;  Humphrey,    7   Conn.  116  ;  Anderson 

Whart.  on  Horn.  §§  693-4.     See  Bart-  u.  Long,    10    S.    &   R.    55;  Atkinson 

lettr.  Decreet,  4  Gray,  113;  Sheen  r.  v.    Graham,     5    Watts,   411  ;    Vicks- 

Bumpsteed,  2  H.  &C.  193;Lee  V.  Kil-  burg  R.  R.   Co.  v.  Patton,  31  Miss, 

burn,  3  Gray,  594;  and  see  cases  cited  156. 
supra,  §  234. 

244 


CHAP.  IV.]  HEARSAY  :   RES   GESTAE.  [§  258. 

the  date  or  place  of  an  incident  he  narrates,  to  which  date  and 

place  are  material.     To  refuse  to  permit  him  to  recall   Collateral 

conversations  with  others  by  which  such  circumstances   admiTsTble 

would  be  fixed,  mii^ht  preiudice  the  truth,  not  only  by   to'^f^es^i 
'  _      o       X      J  '    ^  J      J     memory  as 

leavino^   his    testimony  without  a  definite   impression,    to  inc'- 

,  1  11-  1  •  n        •  p  1     •  •  ,  dents ia 

but  by  precludmg  his  recollections  from  being  either  chief, 
verified  or  contradicted.  Hence,  conversations  with  third  per- 
sons have  been  sometimes  held  not  inadmissible  when  introduced 
for  the  purpose  of  identifying  facts  or  dates.  It  is  scarcely  neces- 
sary to  observe  that  such  conversations  are  not  evidence  of  the 
truth  of  facts  which  they  state.  They  are  evidence  only  on  the 
single  point  of  fixing  particular  dates,  places,  or  other  extrinsic 
incidents  of  the  facts  testified  to  by  the  witness. ^ 

X.  EXCEPTION  AS  TO  RES  GESTAE. 

§  258.  The  area  of  events  covered  by  the  term  res  gestae  depends 
upon  the  circumstances  of  each  particular  case.  When  j?e.,  rjestna 
a  business  man,  coolly  and  disengagcdly,  completes  half  ^lough  ^^^ 
a  dozen  distinct  negotiations  in  the  course  of  an  hour,  i^earsay. 
the  sweep  taken  by  the  res  gestae  in  each  case  is  limited  to  what 
is  done  in  the  time  of  the  particular  negotiation.^  When,  how- 
ever, one  man,  of  high  parts  and  great  energy,  is  employed  in  a 
single  protracted  negotiation  of  great  importance,  then  we  can 
conceive  of  his  whole  time  for  weeks  being  absorbed  in  the  nego- 
tiation, and  of  its  so  tinging  with  its  characteristics  everything 
that  he  does  and  says  that  for  all  this  period  the  things  which  he 
does  and  says  become  rather  the  incidents  of  the  negotiation 
than  of  himself.^  So  if  in  one  of  our  streets  there  is  an  unex- 
pected collision  between  two  men,  entire  strangers  to  each  other, 
then  the  res  gestae  of  the  collision  are  confined  within  the  few 
moments  that  it  occupies.  When,  again,  there  is  a  social  feud,  in 
which  two  religious  factions,  as  in  the  case  of  the  Lord  George 
Gordon  disturbances,  or  of  the  Philadelphia  riots  of  1844,  are 
arrayed  against  each  other  for  weeks,  and  so  much  absorbed  in 

1  Phil.  R.  R.  V.  Stimpson,  14  Pet.  »  Miles  v.  Knott,  12  Gill  &  J.  -142. 

448;  Hill  V.  North,  34  Vt.  G04  ;  Brown-  «  Fificlil  r.  Rifhanlson,  31  Vt.  410; 

inoj  u.  Skillinan,  24  N.  J.  L.  351;  State  Cunnin<;ham  i'.  Parks,  97  Mass.  172; 

V.  Fox,  25  N.  J.  L.  566.      See  infra,  Muscoigne  r.  Radd,  54  Ga.  33. 
§519. 

245 


§  259.]  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

the  collision  as  to  be  conscious  of  little  else,  then  all  that  such 
parties  do  and  say  under  sucli  circumstances  is  as  much  part  of 
the  7'es  gestae^  as  the  blows  given  in  the  homicides  fur  which  par- 
ticular prosecutions  may  be  brought.^ 

§  259.  The  res  gestae  may  be  therefore  defined  as  those  circum- 
stances which  are  the  undesigned  incidents  of  a  particular  liti- 
gated act,  and  which  are  admissible  when  illustrative  of  such  act.^ 
These  incidents  may  be  separated  from  the  act  by  a  lapse  of 
time  more  or  less  appreciable.  They  may  consist  of  speeches  of 
any  one  concerned,  whether  participant  or  bystander  ;  they  may 
comprise  things  left  undone  as  well  as  things  done.  Their  sole 
distinguishing  feature  is  that  they  should  be  the  necessary  inci- 
dents of  the  litigated  act ;  necessary  in  this  sense,  that  they  are 
part  of  the  immediate  preparations  for  or  emanations  of  such  act, 
and  are  not  produced  by  the  calculated  policy  of  the  actors.  In 
other  words,  they  must  stand  in  immediate  causal  relation  to  the 
act,  —  a  relation  not  broken  by  the  interposition  of  voluntary 
individual  wariness,  seeking  to  manufacture  evidence  for  itself. 
Incidents  that  are  thus  immediately  and  unconsciously  associ- 
ated with  an  act,  whether  such  incidents  are  doings  or  declara- 
tions, become  in  this  way  evidence  of  the  character  of  the  act.^ 

^  See  rulings  substantially  to  this  Co.  109  Mass.  449;  Com.  v.  Vosburg, 

effect  in  Cora.  v.  Sherry,  and  Com.  v.  112  Mass.  419;  Russell  v.  Frisbie,  ID 

Daley,  reported  in  the  Appendix  to  Conn.  205;  Haight  v.  Haight,   19  N. 

Whart.  on  Homicide.      See,  also,  R.  Y.  464;  Jones  v.  Brownfield,  2  Penn. 

V.  Gordon,  21  How.  St.  Tr.  542.  St.  55;  Rees  v.  Livingston,  41   Penn. 

2  See  Nutting  v.  Page,  4  Gray,  584.  St.  113;   Henry  v.  Warehouse    Co.   2 

8  Bateman  v.  Bailey,  5  T.  R.  512  ;  Notes  of  Cases,  389;  Handy  v.  John- 

Rawson  i-.  Haigh,  2  Bing.  99;  Smith  son,  5  Md.  450;  Curtis  v.  Moore,  20 

V.  Kramer,   1   Bing.  N.  C.  585;  Lord  Md.  93;   Araick  v.  Young,  69  111.  542: 

V.    Colvin,    4    Drew.    366  ;    U.  S.    v.  Paul  v.   Berry,  78   111.    158  ;    Boone 

Omeara,  1  Cranch   C.  C.  165;   Jewell  Bank  v.  Wallace,  18  Ind.  82;  Hamil- 

V.  Jewell,  1  How.  219;  Flint  v.  Trans,  ton  v.  State,  36  Ind.  281;  Simmons  v. 

Co.    7    Blatchf.    536;  Clark,  in  re,   9  Rust,  39  Iowa,  241;  State  v.  Rawles, 

Blatchf.  379;  Corinth   v.  Lincoln,  34  65  N.   C.  334;  Mitchum  v.  State,  11 

Me.  310;  Cornville  r.  Brighton,  39  Me.  Ga.  615;  Printup  v.   Mitchell,  17  Ga. 

333;  Plumer  v.  French,  22  N.  H.  450;  558;  Clayton  v.  Tucker,  20  Ga.  452; 

Newman  y.  Bean,  21  N.H.  93;  Ather-  Southwest  R.   R.   v.   Rowan,   43   Ga. 

ton  V.  Tilton,  44  N.  H.  452;  Fifield  411 ;  Powell  v.  Olds,  9  Ala.  861;  San- 

V.  Richardson,  34  Vt.  310  ;  Lund  v.  ford  y.  Howard,  29  Ala.  684;  Autau- 

Tyngsborough,  9  Cush.  36;  Boston  R.  ga  v.  Davis,   32   Ala.   703  ;  Bragg  v. 

R.I-.  Dana,  1  Gray,  83;  Blake  ?;.  Damon,  Massie,  38   Ala.  89;  Mobile  R.  R.  v. 

103  Mass.  199;  Parker  v.  Steamboat  Ashcraft,  48  Ala.  15;  Mann  v.  Best, 
246 


CHAP.  IV.]  HEARSAY  :  RES  GESTAE.  [§  261. 

Thus,  in  an  action  for  false  imprisonment,  the  defendant  justi- 
fied on  the  ground  that  he  had  given  the  plaintii?  in  custody 
for  forging  a  bill  of  exchange,  which  had  been  dishonored  on  pre- 
sentment to  the  drawee.  A  witness  stated  that  he  had  accom- 
panied the  defendant  to  the  drawee,  who  refused  to  pay.  He 
was  then  asked  what  the  drawee  had  said  at  the  time  of  the 
refusal.  The  question  was  objected  to,  but  the  court  held  that 
the  evidence  was  part  of  the  I'es  gestae.  There  were  peculiar 
circumstances  in  the  case,  but  Tindal,  C.  J.,  said  :  "  Even  if 
the  inquiry  before  us  had  depended  on  the  determination  of  the 
point,  whether  evidence  by  the  defendant  of  the  dishonor  of  the 
bill,  and  of  the  circumstances  attending  such  dishonor,  was  rele- 
vant to  the  question  then  before  the  jury,  it  would  have  been 
difficult  altogether  to  exclude  such  evidence  on  the  score  of  its 
irrelevancy."  ^ 

§  260.  Another  phase  of  illustration  may  be  found  in  a  Mas- 
sachusetts case  decided  in  1872,  in  which,  the  suit  being  against 
a  steamboat  company  for  injuries  to  a  passenger  by  the  fall  of 
a  gangway  leading  from  a  wharf  to  the  defendant's  boat,  evi- 
dence was  admitted  that  men  working  at  the  gangway  were 
warned,  immediately  before  the  accident,  that  the  plank  was 
unsafe.^  So,  also,  it  was  held  in  the  same  year  in  Alabama,  in 
a  suit  against  a  railroad  company  for  injury  to  a  passenger,  where 
the  plaintilf  received  his  injury  in  leaping  from  a  car,  while 
others  who  renuiined  inside  were  not  hurt,  that  the  plaintiff  could 
put  in  evidence  the  declarations  of  such  other  persons  giving 
their  reasons  for  so  remaining.^ 

§  261.  A  narrative  of  past  events,  however,  cannot  be  intro- 
duced as  part  of  the  res  gestae.^     Yet  again  must  it  be  remem- 

62  Mo.  491;  People  i;.  Vornon,  35  Cal.  Peacock    i-.    ILirris,   5   A.  &  K.  4J9; 

49;  Sill  r.  Reese,  4  7  Cal.  294;  Rollins  RoLkwell   v.    Taylor,    41    Conn.    55; 

V.  Strout,  G  Nev.  150;  State  v.  Gairand,  Whitney  v.  Uurkin,  48  Cal.  4G2.     See 

5  Oregon,  21G.  cases  cited  infra,  §,^  2G5,  1180. 

1  Perkins  y.  Vauglian,  4  M.  &  G.  988.  "  But  when  the  declarations  olTercd 

2  Parkerv.  Steamboat  Co.  109  Mass.  are  merely  narratives  of  past  occur- 
449.  rences,  they  are  incompetent.  1  (Jreenl. 

8  Mobile  R.  R.  v.  Ashcraft,  48  Ala.  Ev.  §  110.    That  is  precisely  this  case. 

15.     See  Indianapolis  R.  R.  v.   An-  The   declarations   given   in  evidence 

thony,  43  Ind.  183;  and  see,  as  to  ad-  were  a  mere  statement  of  what  had 

missions  by  agents,  infra,  §  1173.  been  done  at  the  doctor's  ollice,  and 

*  Hyde  v.  Palmer,  3  B.  &  S.  C57;  not  any  part  of  what  was  then  done, 

247 


§  262.]  THE  LAW   OF  EVIDENCE.  [BOOK  I. 

bered  that  continuousness  is  not  always  to  be  measured  by  time. 
A  transaction,  in  which  the  parties  are  absorbed,  may  hist  for 
weeks,  so  as  to  make,  as  has  just  been  said,  what  is  said  and  done 
in  connection  with  it  part  of  the  res  gestae.  In  this  view  we  can 
understand  the  comments  of  Lord  Denman,^  concurring  in  a  prior 
remark  of  Parke,  B.,^  "that  it  is  impossible  to  tie  down  to  time 
the  rule  as  to  the  declarations  "  that  may  be  made  part  of  the 
res  gestae  in  cases  of  bankruptcy  ;  to  which  Lord  Denman  added, 
"  that  if  there  be  connecting  circumstances,  a  declaration  may, 
even  at  a  month's  interval,  form  part  of  the  whole  res  gestae^  ^ 

§  262.  Therefore,  declarations  which  are   the   immediate  ac- 
„  .    .,        companiments  of  an  act  are  admissible  as  part  of  the 

Comcideut  -^  ,.,.,,. 

business  res  gestae  ;  remembering  that  immediateness  is  tested 
tionsre-  by  closeness,  not  of  time,  but  by  causal  relation  as  just 
explained.^  Coincident  business  declarations  are  hence 
to  be  received  to  qualify  the  acts  to  which  they  relate.^  Thus, 
A.'s  declarations  in  paying  money,  that  he  pays  as  agent  of  P., 
or  in  order  to  show  the  application  of  the  money,  are  admis- 
sible ;  ^  and  so  are  declarations  of  a  party,  in  receiving  money, 
that  more  is  still  due  him  ;  "*  and  declarations  of  a  party  accept- 

and  therefore  no  part  of  the  res  gestae.  Duncan,  11  Pick.  308;  Kelly  v.  Camp- 
See  Insurance  Company  v.  Moseley,  8  bell,  2  Abb.  (N.  Y.)  App.  492;  Reed 
Wallace,  397,  where  a  somewhat  elab-  v.  R.  R.  56  Barb.  493;  Peppinger  v. 
orate  review  of  the  authorities  upon  Low,  1  Halst.  384  ;  Devling  v.  Little, 
this  point  will  be  found  in  the  opinions  26  Penn.  St.  502;  Custar  v.  Gas  Co. 
of  the  judges,  and  where  the  doctrine  63  Penn.  St.  381;  Smith  v.  Cooke,  31 
as  to  what  may  be  regarded  as  part  of  Md.  174  ;  Taylor  v.  Lusk,  9  Iowa,  444; 
the  res  gestae  was  certainly  carried  to  Blake  v.  Graves,  18  Iowa,  312;  East- 
its  utmost  limit  by  a  majority  of  the  man  v.  Bennett,  6  Wise.  232 ;  Brazier 
court."  Grover,  J.,  People  v.  Davis,  v.  Burt,  18  Ala.  201  ;  Jennings  v. 
56  N.  Y,  102.  See  Lees  v.  Martin,  1  Blocker,  25  Ala.  415;  Sayre  v.  Dur- 
M.  &  Rob.  210.  wood,  35  Ala.  247  ;  Patterson  v.  Flan- 

1  Rouch  V.  R.  R.  1  Q.  B.  51.  agan,  37  Ala.  513;  Weavers.  Lapsley, 

2  Rawson  v.  Haigh,   5  Bing.  104;  42  Ala.   601;  Criddle   v.  Criddle,   21 
S.  C.  9  Moore,  21 7.  Mo.  522  ;  Rogers  v.  Broadnax,  27  Tex. 

»  See,  also,  Ridley  r.  Gyde,  9  Bing.  238;  Brazelton  v.  Turney,    7   Coldw. 

349.  267;  Tevis  v.  Hicks,  41  Cal.  123. 

*  Bateman  v.  Bailey,  5  T.  R.  512;  6  Bank  v.  Kennedy,  17  Wall.  19; 

Vacher  v.  Cocks,  5  M.  &  M.  353  ;  Doe  Purkiss  v.  Benson,  28  Mich.  538. 

V.   Arkwright,  5  C.  &  P.  575  ;  Sharp  «  Carter  v.  Beals,    44  N.   H.   408; 

V.   Newsholme,   5   Bing.  N.    C.  517;  Bankof Woodstock r. Clark, 25 Vt. 308. 

Bank  V.  Kennedy,  17  Wall.  19;   Ses-  ''  Dillard  v.   Scruggs,  36  Ala.  670. 

Bions  V.  Little,  9  N.  H.  271;  Allen  v.  See  Webster  v.  Canmann,  40  Mo.  156. 

248 


CHAP.  IV.]  HEARSAY:   RES   GESTAE.  [§  263. 

ing  service  of  process.^  And  so  of  declarations  of  officers  at  the 
time  of  making  levy  ;  ^  of  declarations  of  a  married  woman,  ob- 
jecting to  the  acknovrledgment  of  a  deed,  which  she  acknowl- 
edges under  protest ;  ^  of  declarations  of  public  officers  generally 
when  such  declarations  are  part  of  the  discharge  of  their  official 
duties,  the  acts  being  admissible  ;  ^  of  declarations  of  a  party, 
takhig  possession  of  land,  as  to  the  boundaries.^  As  has  been 
already  noticed,  however,  such  declarations,  to  be  admissible, 
must  be  made  during  the  transaction.  If  made  after  its  com- 
pletion, they  are  too  late.*'  It  is  no  objection  to  such  declara- 
tions that  they  are  self-serving,  if  they  are  part  of  the  res 
gestaeJ 

§  263.  On  the  same  principle  declarations  coincident  with  torts 
are  receivable.^     Thus,  in  an  action  against  an  insur-   so  of  dec- 
ance  company  for  the  loss  of  a  ship  burned  by  the  miU-   co?ncid"nt 
tary  authorities,  evidence  was  received  as  to  the  orders    ^^"'^  '°'"'^- 
set  up  by  the  persons  destroying  the  vessel.^     So  it  has  been 
hekPO  that  a  husband,  in  defending  an  action  against  him  for 
the  board  of  his  wife,  is  entitled  to  show  her  declaration  confess- 
ing adultery,  made  immediately  before  he"  turned  her  off,  and 
also  letters  from  men  found  about  that  time  in  her  desk.     Again, 
in  an  action  for  enticing  away  the  plaintiff's  wife,  the  declara- 
tions of  the  wife,  made  immediately  before  or  at  the  time  she  left 
her  husband,  of  his  cruel  treatment  of  her,  have  been  held  cora- 

^  Feagan  v.  Cuneton,  19  Ga.  404.  493.    See  Norton  w.  Pettibone,  7  Conn. 

2  Arnold   v.    Gore,    1  Rawle,    233;  319;    Flagg  v.  Mason,  8   Gray,  556; 

Grandy  y.  McPherson,  7  Jones  L.,347;  Davis   v.   Campbell,  1    Ired.  L.  482; 

Dobbs  I!.  Justice,  17  Ga.  624  ;  Morgan  Brewer  v.  Brewer,  19  Ala.  481. 

V.  Sims,  26  Ga.  283.  "  Supra,  §  261;  infra,  §  265  ;  Kock- 

8  Louden    v.  Blytbe,  16    Penn.  St.  well  v;  Taylor,  41  Conn.  56;  Peoples. 

532.  Davis,  56  N.  Y.  102  ;  Whitney  v.  Dur- 

*  Maber   v.   Chicago,    38    111.  266  ;  kin,  48  Cal.  462. 

George  v.   Thomas,   16  Tex.   71.     In  "^  See  infra,  §  1110,  and  cases  under 

Steele  v.  Thompson,  3  Pen.  &  W.  34,  next  section. 

where  a  husband  was  sought  for  at  his  *  Sec  cases  cited  to  §  258;  infra,  §§ 

own  house,  for  the  purpose  of  making  1173-7;  R.  v.  Foster,  G  C.  &  P.  325; 

a  tender  to  him,  and  his  wife  refused  Courtney  i'.  Baker,  34  N.  Y.  Sup.  Ct. 

to  give  information  where  he  could  be  29  ;  Indianapolis    R.   R.  v.    Anthony, 

found,  and  declared  that  her  husband  43  Ind.    183;  Ilarrimau  r.   Stowe,  57 

would   not  accejjt    the    tender;  these  Mo.  93. 

declarations  were  given  in  evidence.  °  Marcy  i'.  Ins.  Co.  19  La.  An.  388. 

5  Potts   V.  Everhart,  26    Penn.  St.  i°  Walter  v.  Green,  1  C.  &  P.  621. 

249 


§  265.]  THE   LAW   OF  EVIDENCE.  [BOOK  I. 

petent  evidence  for  the  defendant.^  So  in  a  suit  against  a  rail- 
road company  for  the  killing  of  a  person  whose  representatives 
claim  damages,  the  deceased's  declarations  immediately  after  the 
injury  can  be  received.^  So  evidence  of  the  declarations  of  a 
party  taking  possession  of  property  may  be  received  as  explain- 
ing the  nature  or  limitations  of  such  possession  .^ 

§  264.  What  is  done  is  part  of  the  res  gestae  as  much  as  is 
What  is  what  is  said  ;  and  on  this  additional  ground  is  explained 
htbUe*!!  ar  ^  famous  ruling,  elsewhere  noticed,  that  without  pro- 
thetiine,      ducing:  flags  exhibited  at  seditious  meetings  the  inscrip- 

may  be  so  o        ^  .  . 

proved.  tious  on  such  flags  could  be  proved  ;  ^  for  such  inscrip- 
tions used  on  such  occasions  are  the  public  expression  of  the 
sentiments  of  those  who  bear  them,  and  have  rather  the  character 
of  speeches  than  of  writings.^  So  a  foreign  proclamation,  con- 
tained in  a  printed  placard,  is  treated  as  an  inscription  or  act 
done,  and  may  be  proved  by  oral  evidence  or  an  examined  copy. 
In  such  a  case,  Pollock,  C.  B.,  said :  "  Hearsay  evidence  is  ad- 
missible when  it  is  part  of  a  transaction  ;  and  in  this  way  the 
exclamations  of  a  crowd  may  be  received  as  evidence.  But  there 
is,  generally  speaking,  this  distinction  between  what  is  said  and 
what  is  done  :  in  order  to  admit  the  former  it  is  necessary  that 
the  authority  of  the  speaker  should  be  shown  in  order  to  affect 
the  parties ;  but  if  it  be  something  done  that  is  to  be  proved,  no 
authority  is  required,  because  there  is  no  danger  of  being  misled  ; 
and  I  regard  a  placard  or  proclamation  on  a  wall  rather  as  some- 
thing done.  In  a  case  before  me  at  Guildford,  where  the  plain- 
tiff sought  to  recover  the  expenses  of  an  election,  I  would  not 
allow  orders  given  by  third  parties  by  word  of  mouth  to  be  ad- 
mitted in  evidence  against  the  defendant,  but  I  admitted  inscrip- 
tions on  coaches."  ^ 

§  265.  Such  declai'ations,  however,  are  inadmissible  if  so  far 
prior  to  the  act  as  to  give  opportunity  for  their  concoction  in 

1  Gilchrist  v.  Bale,  8  Watts,  355.  Bk.  v.  Carter,  38  Penn.  St.  446;  Lloyd 

2  Entwhistle  v.  Feighner,  60  Mo.  v.  Farrell,  48  Penn.  St.  73 ;  Black  v. 
214;  Harriman  v.  Stowe,  57  Mo.  93;  Thornton,  30  Ga.  361;  Stovall  w.  Bank, 
Elkins  V.  McKean,  79  Penn.  St.  493.  16  Miss.  305;  State  v.    Schneider,  35 

8  Hall   V.  Young,    37    N.  H.   134;  Mo.  533. 

Blood  V.  Rideout,  13  Mete.   (Mass.)  *  Supra,  §  97. 

237;  Stetson  v.  Howland,  2  Allen,  591;  ^  r.  ,,.  Hunt,  3  B.  &  Aid.  574. 

Happy  u.  Mosher,  47  Barb.  501  ;  York  «  Bruce  v.  Nicolupolo,  11  Ex.  129. 
250 


CHAP.  IV.] 


HEARSAY  :  RES  GESTAE. 


[§  266. 


tions  inad- 
missible if 
there  be 
opportu- 
nity for 
concoction. 


way  of  preparation,^  or  so  far  afterwards,  as  to  leave  an  inter- 
val of  cooling  time  (to  be  measured  by  the  circum-  ppp|,j,.jj. 
stances  of  the  case),  in  which  excuses  or  explanations 
could  be  got  up.  Hence  all  declarations  which  are 
in  tlie  nature  of  a  narrative  of  past  events  are  inadmis- 
sible.2  So  proof  of  deliberation  excludes  such  declara- 
tions ;  and  for  this  reason  a  letter  written  to  a  party  is  inadmis- 
sible for  liim,  though  written  immediately  after  the  transaction.^ 
But  this  limitation  as  to  time  does  not  apply  to  instinctive  ex- 
clamations to  a  physician  or  other  attendant  as  to  the  party's 
bodily  or  mental  state. '^ 

§  266.  A  declaration,  also,  is  inadmissible  for  the  purpose  of 
explaining  an  unexecuted  intent,  unless  the  subjective   pg^iara- 
condition  of  the  party's  mind  is  at  issue.-^     And  when    tions  inad- 

i         •'  _  ^  nussible  to 

the  quality  or  tone  of  an  overt  act  is  at  issue,  declara-    explain  in- 

1  .      .    admissible 

tions  as   to  such  act  cannot  be  proved,  unless  prooi  or   acts ;  nor 
the  act  itself  is  admissible,  and.  the  act  is  itself  proved.*^   rations  ad- 
So  the  fact  of  insolvency  must  be  established,  before    ^"-fiiout 
statements  of  the  insolvent  will  be  admitted  to  show   ^^ts. 
that  he  was  aware  of  his  embarrassed  circumstances.'     It  is  true 


^  Supra,  §  261.  Bangor  v.  Bruns- 
wick, 27  Me.  351;  Stone  v.  Segur,  11 
Allen,  5G8 ;  Rowell  v.  Lowell,  11 
Gray,  420;  Walrod  v.  Ball,  0  Barb. 
271;  Smith  v.  Betty,  11  Grat.  752; 
Wadsworth  v.  Harrison,  14  Iowa,  272; 
Lee  V.  Hester,  20  Ga.  588;  llosenbaum 
V.  State,  33  Ala.  354  ;  Gamble  v.  John- 
son, 9  Mo.  605;  State  v.  Dominique, 
30  Mo.  585. 

2  Supra,  §  260  ;  infra,  §  1180.  Doe 
t;.  Webber,  1  Ad.  &  El.  733;  Wilson 
V.  Sherlock,  36  Me.  295  ;  Battles  v. 
Batchelder,  39  Me.  19;  Banfield  i'. 
Parker,  36  N.  H.  353;  Barnum  v. 
Hackett,  35  Vt.  77;  Boyden  y.  Moore, 
11  Pick.  362;  Salem  i'.  Lynn,  13  l\Ietc. 
544 ;  Johnson  v.  Sherwin,  3  Gray, 
374;  Osborn  v.  Robbins,  37  Barb. 
481;  Spatz  f.  Lyons,  55  Barb.  476; 
Reed  v.  Dick,  8  Watts,  479;  Young 
V.  Com.  28  Penn.  St.  501  ;  Stewart  r. 
lledditt,  3  Md.  67  ;  Hopkins  v.  Rich- 


ardson, 9  Grat.  485  ;  Gardner  v.  Peo- 
ple, 4  111.  83;  State  v.  Black,  6  Jones 
L.  510;  Raiford  v.  French,  11  Rich. 
367;  Hart  v.  Powell,  18  Ga.  635  ;  Rut- 
land V.  Ilathorn,  36  Ga.  380  ;  Harrison 
V.  Harrison,  9  Ala.  73  ;  Webb  r.  Kel- 
ly, 3  7  Ala.  333;  Me  Adams  v.  Beard, 
35  Ala.  478;  Hall  v.  State,  40  Ala. 
698;  Brand  i;.  Abbott,  42  Ala.  499  ; 
Simmons  v.  Norwood,  21  La.  An.  421; 
State  V.  Jackson,  17  ]\Io.  544;  Parkey 
V.  Yeary,  1  Hoisk.  15  7. 

8  Small  V.  Gillman,  48  Me.  506. 

*  Infra,  §  268. 

^  Hale  V.  Taylor,  45  N.  H.  405; 
Lund  V.  Tyngsborou^h,  9  Gush.  36. 

0  Carlctou  r.  Patterson,  29  N.  IL 
580  ;  Morrill  r.  Foster,  32  N.  II.  358  ; 
Comiiis  r.  Comins,  21  Conn.  413  ; 
People  r.  Williams,  3  Parker  C.  K. 
84;  (Jilbert  v.  Gilbert,  22  Ala.  529; 
Fail  V.  Mc  Arthur,  31  Ala.  26. 

7  Thomas  v.  Connell,  4  M.  cSc  W. 
2.">1 


§  268.] 


THE   LAW   OF   EVIDENCE. 


[book  I. 


that  wlien  simply  the  belief  of  a  party  is  in  issue,  such  belief 
may  be  iiulcpendently  proved  by  his  declarations.  Thus,  if  the 
act  of  bankruptcy  relied  upon  be  an  absenting  with  intent  to  de- 
lay creditors,  a  declaration  by  the  bankrupt,  that  he  left  home  to 
avoid  a  writ,  will  be  admissible,  though  no  evidence  be  given  that 
any  writ  was  actually  out  against  him,  because,  in  order  to  con- 
stitute this  act  of  banki'uptcy,  neither  writ  nor  pressure  is  in  fact 
necessary. 1  But,  even  in  this  case,  the  departure  from  home  is 
a  substantive  act,  which  must  be  proved  by  evidence  independent 
of  the  declaration.^ 

§  267.  Nor,  ordinarily,  is  it  admissible  to  prove  the  narration 
of  a  witness  as  part  of  the  res  gestae,  if  the  witness  is 

Narration       ,  .  i  c      i       •       i  i  •    i  o        mi 

of  a  witness    himseli  obtamabie  on  trial. "^       ihus  m  a  suit  arising 

bie  when "     from  a  Collision  of  carriages  on  a  highway,  the  declara- 

couki'ilim-   tions  of  the  defendant's  servant,  immediately  after  the 

self  be  pro-  collision,  that  the  plaintiff  was  not  to  blame,  were  ex- 
duced.  _  ^  _ 

eluded.*     The  opinions  of  a  bystander,  if  admissible, 

must  be  proved  by  calling  him  as  a  witness.^ 

XI.  EXCEPTIOX  AS  TO  DECLARATIONS  CONCERNING  PARTY'S  OWN 
HEALTH  AND  STATE  OF  MIND. 

§  268.  It  is  well  settled  that  the  character  of  an  injury  may 
Declara-  ^^  explained  by  exclamations  of  pain  and  terror  at  the 
tion  of         time  the  iniury  is  received,  and  by  declarations  as  to 

party  as  to     .  « 

his  own       its  cause."     So  when  the  nature  of  a  party's  sickness  or 
hurt  is  in  litigation,  his  instinctive  declarations  to  his 


267,  269,  270;  Craven  v.  Halliley,  cited 
Ibid.  270,  per  Parke,  B.;  Vacher  v. 
Cocks,  M.  &  M.  353. 

1  Rouch  V.  R.  R.  1  Q.  B.  51,  62, 
63;  4  P.  &  D.  686,  S.  C.  ;  Newman 
V.  Stretch,  M,&  M.  338,  per  Parke,  J.; 
Ex  parte  Bamford,  15  Ves.  449;  Rob- 
son  V.  Rolls,  9  Bing.  648. 

^  Rouch  V.  R.  R.  ut  supra. 

8  Allen  V.  Denstone,  8  C.  &  P.  760; 
Great  West.  R.  R.  v.  Willis,  18  C.  B. 
(N.  S.)  748;  Brown  v.  Mooers,  6  Gray, 
451;  Lubyi;.  R.  R.  17  N.  Y.  131; 
Anderson  v.  R.  R.  54  N.  Y.  334; 
Williams  v.  Kelsey,  6  Ga.  365;  Howell 
V.  Howell,  37  Mo.  124. 
252 


*  Lane  v.  Bryant,  9  Gray,  245.  See 
Robinson  v.  R.  R.  7  Gray,  92. 

^  Detroit  R.  R.  v.  Van  Steinburg, 
17  Mich.  99. 

^  Aveson  v.  Kinnaird,  6  East,  188; 
R.  I'.  Blandy,  18  How.  St.  Tr.  1135; 
R.  V.  Guttridge,  9  C.  &  P.  472;  Green 
V.  Bedell,  48  N.  H.  546;  Bacon  v. 
Charlton,  7  Cash.  581 ;  Hall  i-.  Steam- 
boat Co.  13  Conn.  319;  Spatz  v. 
Lyons,  55  Barb.  476  ;  Matteson  v.  R. 
R.  62  Barb.  364  ;  Frink  v.  Coe,  4 
Greene  (Iowa),  555;  Brownell  v.  R. 
R.  47  Mo.  239;  Harriman  v.  Stowe, 
57  Mo.  93;  Entwhistle  v.  Feigner,  60 
Mo.  214. 


CHAP.  IV.]     party's  declarations  of  state  of  mind.       [§  268. 


physician,  or  other  attendant,  during  such  sickness,  may  be  re- 
ceived.^ Immediate  groans  and  gestures  are  in  like  manner  ad- 
missible.2  g^^  declarations  made  after  convalescence,  or  when 
there  has  been  an  opportunity  to  think  over  the  matter  in  refer- 
ence to  projected  litigation,  are  inadmissible.^  Thus  in  an  action 
for  carnally  knowing  the  plaintiff,  a  girl  of  ten  years,  by  force, 
and  giving  her  the  venereal  disease,  the  plaintiff's  statements 
made  to  a  jDhysician,  three  months  after  the  event,  have  been 
ruled  out.*  But  where  such  subsequent  declarations  are  part  of  the 
case  on  which  the  opinion  of  the  physician,  as  an  expert,  is  based, 
they  have  been  received.^  When  the  patient  is  not  a  party,  his 
declarations,  being  hearsay,  are  inadmissible.^  Except,  however, 
for  the  purpose  of  indicating  symptoms,  declarations  of  this  class 
are  not  evidence.''  They  have,  however,  been  received  to  prove 
the  condition  of  a  party's  health  prior  to  an  alleged  poisoning.^ 
In  prosecutions  for  rape,  as  is  well  known,  it  is  admissible  to 
prove  that  the  prosecutrix  made  complaint  shortly  after  the  out- 
rage, though  tlie  particulars  of  the  complaint  are,  it  seems,  in- 
admissible.9     Such  declarations  must  be  given  in  their  substance, 

2  Bacon  v.  Charlton,  7   Cash.  581; 
Hyatt  V.  Adams,  IG  Mich.  180. 

3  Kennard   v.    Burton,   25   Me.  39  ; 


^  Aveson  v.  Kinnaird,  6  East,  188; 
Roberts  r.  Graham,  6  Wall.  578  ;  Ins. 
Co.  V.  IMosley,  8  Wall.  397;  Howe 
r.  Plainfield,  41  N.  H.  135;  Perkins 
V.  R.  R.  44  N.  H.  223;  Towle  v. 
Blake,  48  N.  H.  92;  Taylor  v.  R.  R. 
48  N.  II.  304;  Stiles  v.  Danville,  42 
Vt.  282;  Earl  i'.  Tapper,  45  Vt.  275; 
Com.  IT.  McPike,  3  Cush.  181;  Cald- 
well V.  Murphy,  11  N.  Y.  416;  People 
V.  Williams,  3  Parker  C.  R.  84;  Baker 
V.  Gridin,  10  Bosw.  140;  Caldwell  v. 
Murphy,  1  Duer,  233  ;  Dabbert  v. 
Ins.  Co.  2  Cincin.  98 ;  Johnson  v. 
McKee,  27  Mich.  471;  Gray  v.  Mc- 
Laughlin, 2G  Iowa,  279 ;  State  v. 
Glass,  5  Oregon,  73;  Illinois  R.  R.  v. 
Sutton,  42  111.  438;  Looper  v.  Bell,  1 
Head,  373;  Johnson  v.  State,  17  Ala. 
618;  Phillips  v.  Kelly,  29  Ala.  628; 
Harriman  v.  Stowe,  57  Mo.  93.  See, 
however,  Witt  v.  Witt,  3  Swab.  &  Tr. 
143,  where  letters  written  by  a  pa- 
tient, deseribing  his  situation  to  his 
physician,  were  rejected. 


Bacon  v.  Charlton,  7  Cush.  581;  Cha- 
pin  V.  Marlborough,  9  Gray,  244;  Hunt 
V.  People,  3  Parker  C.  R.  5G9;  Mat- 
teson  V.  R.  R.  35  N.  Y.  487;  Spatz  v. 
Lyons,  55  Barb.  476;  Gray  v.  Mc- 
Laughlin, 26  Iowa,  279;  Lush-  v.  Mc- 
Dank'l,  13  Ired.  L.  488. 

*  Morrissey  v.  Ingham,  1 1 1  Mass. 
63. 

''  Barber  v.  Merriam,  11  Allen,  322; 
Rogers  v.  Grain,  30  Tex.  289.  Seo 
Filer  V.  R.  R.  49  N.  Y.  42.  See, gen- 
erally, Rowell  V.  Lowell,  11  Gray, 
420;  Moody  i'.  Sabin,  9  Cush.  505. 

«  Ashland  v.  Marlborough,  99  Mass. 
47;  though  sec  Rogers  v.  Grain,  30 
Tex.  289. 

7  Collins  V.  Water.i,  54  111.  485. 

8  R.  V.  Johnson,  2  C.  &  Kir.  354; 
R.  y.  Blandy,  18  How.  St.  Tr.  1135. 

"  See  cases  in  Wharton  Cr.  Law, 
§  1150. 

253 


§  269.] 


THE   LAW   OF  EVIDENCE. 


[book  I. 


When  con- 
dition of  a 
person's 
mind  is  at 
issue,  his 
statements 
may  be 
proved. 


and  cannot  be  interpreted  by  the  witness.  Of  this  position  we 
have  an  extreme  illustration  in  a  New  York  case,  in  which,  the 
defendant  being  on  trial  for  the  murder,  and  a  witness  having 
testified  that  he  heard  cries  issuing  from  the  house  on  the  night 
of  the  killing,  it  was  held  that  the  witness  could  not  be  asked 
what  the  cries  indicated. ^ 

§  2Gt).  What  has  just  been  said  applies  to  cases  in  which  it  is 
important  to  determine  a  party's  mental  condition  at  a 
particular  time.  We  have  just  seen^  that,  for  the  pur- 
pose of  exhibiting  such  condition  of  mind,  statements 
made  to  such  party  by  third  persons  may  be  admissible. 
We  have  now  to  recognize  the  position  that,  to  deter- 
mine such  condition  of  mind,  it  is  admissible  to  put  in  evidence 
such  expressions  of  the  party  as  may  be  shown  to  have  been  in- 
stinctive, and  not  to  have  been  uttered  for  the  purpose  of  produc- 
ing a  particular  effect.^  Thus,  where  two  persons  are  sued  for 
an  assault,  in  seizing  a  runaway  apprentice,  it  is  admissible,  as 
showing  the  purpose,  to  prove  that  one  of  them  told  the  other,  at 
the  moment  of  the  collision,  not  to  hurt  the  runaway.^  So  in  an 
action  for  enticing  away  a  runaway  servant,  are  the  declarations 
of  the  servant  at  the  time  of  leaving.^  So  when  the  extent  of 
a  mental  disease  is  in  controversy,  are  the  declarations  of  the 
person  so  affected,^  though  not  as  to  prior  transactions."  So 
when  the  bona  fides  of  a  transaction  is  in  question  are  instinctive 
and  unpremeditated  declarations  of  parties  or  their  agents,  dur- 
ing the  negotiations,  as  touching  such  bona  fides.^  So  where  a 
married  woman  sets  up  duress  and  coercion  to  avoid  a  deed  ex- 


1  Messner  v.  People,  45  N.  Y.  1. 

2  Supra,    §    254;    and    see    supra, 
§§  33-5. 

^  See  cases  cited  in  last  section, 
and  see  Com.  v.  O'Connor,  11  Gray, 
94  ;  Howe  v.  Howe,  99  Mass.  88  ; 
Goodwin  V.  Harrison,  1  Root,  80  ; 
Kearney  t'.  Farrell,  28  Conn.  317; 
Roacli  V.  Lehring,  59  Penn.  St.  74  ; 
Knowlton  v.  Clark,  25  Ind.  395 ;  Wil- 
liams V.  Jarrot,  1  Gilman,  120;  AVelsli 
V.  Louis,  31  111.  446  ;  111.  Cent.  R.  R. 
V.  Sutton,  42  111.  438  ;  Buttram  v. 
Jackson,  32  Ga.  409  ;  Edgar  v.  Mc- 
254 


Arn,  22  Ala.  796  ;  Liles  v.  State,  30 
Ala.  24  ;  State  v.  Hays,  22  La.  An. 
39 ;  People  v.  Shea,  8  Cal.  538.  See 
Whart.  Cr.  Law,  7tli  ed.  50  a. 

■*  Williams  v.  Jarrot,  1  Gilman,  120. 

s  Hadley  v.  Carter,  8  N.  H.  40. 

6  1  Whart.  &  St.  Med.  Jur.  §  286 
(3d  ed.)  ;  Whart.  Cr.  Law  (7th  ed.), 
50  a;  Howe  v.  Howe,  99  Mass.  88; 
111.  Cent.  R.  R.  v.  Sutton,  42  111.  438. 

'  Stewart  v.  Redditt,  3  Md.  67. 

8  Banfield  v.  Parker,  36  N.  H.  353; 
Zabiiskie  v.  Smith,  13  N.  Y.  322. 
See  supra,  §  35. 


CHAP.  IV.]         party's   declaration   OF   STATE   OF   MIND.        [§  269. 

ecuted  by  her,  she  may  prove  her  husband's  threats  and  her  con- 
sequent terror.!  On  the  same  principle,  in  actions  for  adultery, 
what  the  husband  and  wife  had  said  to  each  other,  or  letters 
written  by  either  party  to  the  other,  when  there  was  no  ground 
to  suspect  collusion,  were  received  in  evidence  to  show  the  terms 
on  which  they  lived. ^  In  life  insurance  cases  the  party's  views 
as  to  his  condition  may  be  thus  shown.  Thus  in  an  English 
action  on  a  policy  of  insurance,^  the  defendants  offered  evidence 
that,  a  few  days  after  it  was  made,  the  deceased,  who  had  pre- 
viously represented  herself  to  the  defendants  as  being  in  good 
health,  had  given  a  totally  different  account  of  her  health  to  a 
witness.  It  was  held  that  the  witness  might  relate  her  conver- 
sation with  the  deceased  ;  and  that  the  statements  of  the  latter, 
as  so  related,  would  be  evidence  in  the  same  way  as  the  answers 
of  patients  to  the  inquiries  of  their  medical  attendants  are  evi- 
dence as  to  their  state  of  health.^ 

1  Central  Bank  v.  Copeland,  18  Md.  '  Aveson  v.  Kinnard,  6  East,  188. 
305.  *  Witt  V.   Klindworth,  3    S.  &   T. 

2  Trelawney   v.   Coleman,   1    B.  &  143.     See  fully  supra,  §§  33-3.5. 
Aid.  90  ;  cf.  Willis  v.  Bernard,  8  Bing. 

376.     Supra,  §§  34,  35. 

255 


BOOK  11. 

MODE   OF  EECEIYIISra  PEOOF. 


CHAPTER  V. 


JUDICIAL  NOTICE. 


I.  General  Rules. 

Court  cannot  take  notice  of  evidential 
facts  not  in  evidence,  §  276. 

Non-evidential  facts  may  be  judi- 
cially noticed,  §  277. 

Reason  a  coordinate  factor  with  evi- 
dence, §  278. 

Judge  may  on  his  own  motion  inter- 
rogate witness  and  start  points  of 
law,  §  281. 

Maj'  consult  other  than  legal  litera- 
ture, §  282. 

May  of  his  own  motion  take  notice 
of  law,  §  283. 

Law  of  God,  natural  and  revealed, 
§284. 

Law  of  nations,  §  285. 

Domestic  law,  §  286. 
II.  Codes  and  tiieik  Proof. 

Federal  laws  not  "foreign"  to  the 
states,  nor  state  laws  to  the  federal 
courts,  §  287. 

Particular  states  foreign  to  each  other, 
§288. 

State  laws  may  be  proved  from 
printed  volume,  §  289. 

Court  may  determine  whether  statute 
has  passed,  §  290. 

Judicial  notice  taken  of  laws  of  prior 
sovereign,  §  291. 

Private  laws  not  noticed  by  court, 
§292. 

Distinction  between  public  and  private 
laws,  §  293. 

Court  takes  notice  of  mode  of  authen- 
ticating laws;  and  herein  of  legisla- 
tive action  generally,  §  295. 

Subsidiary  systems  noticed,  §  296. 
Equity,  §  296. 

256 


Military  law,  §  297. 

Law  merchant  and  maritime,    § 

298. 
Ecclesiastical  law,  §  299. 

Foreign  law  must  be  proved,  §  300. 

Proof  must  be  b\'  parol,  §  302. 

Experts  admissible  for  this  purpose, 
§  305. 

Experts  may  verify  books  and    au- 
thorities, §  308. 

Foreign  statutes  may  be  proved  by 
exemplification,  §  309. 

Printed    volumes    are    prima   facie 
proof,  §  310. 

Judicial  construction  of  one   state  is 
adopted  by  another,  §  311. 

Statute    must    be  put    in    evidence, 
§312. 

Foreign  elementary  jurisprudence  can 
be  noticed,  §  313. 

Foreign  law  presumed   not  to  differ 
from  lex  fori,  §  314. 

But  not  so  as  to  local  peculiarities, 
§315. 

Lex  fori  determines  rules  of  evidence, 
§316. 
III.  Executive    and     Judicial     Docu- 
ments. 

Court  takes  notice  of  executive  docu- 
ments, §  317. 

Public    seal    of    state    self-proving, 
§318. 

So  of  seals  of  notaries,  §  320. 

So  of  seals  of  courts,  §  321. 

So  of  handwriting  of  executive,  §  322. 

So  of  existence  of  foreign  sovereign- 
ties, §  323. 

So  of  judicial  officers,  and  practice, 
§324. 


CHAP,  v.] 


JUDICIAL   NOTICE. 


[§  278. 


So  of  proceedings  in  particular  case, 

§325. 
So  of  records  of  court,  §  326. 

IV.    NOTOKIETY. 

Notoriety  in  Roman  law,  §  327. 
Canon  law,  §  328. 
General   characteristics   of  notoriety, 

§  329. 
Of  notoriety  no  proof  need  be  offered, 

§  330. 
Notorious    customs     need     not     be 

proved,  §  331. 


Instances : 

Course  of  seasons,  §  332. 

Limitations  of  humaD  life  as  to  age, 
§  333. 

Limitations  of  human  life  as  to  gesta- 
tion, §  334. 

Conclusions  of  science  and  political 
economy,  §  335. 

Ordinary  psychological  and  physical 
laws,  §336.* 

Leading  domestic  political  appoint- 
ments, §  337. 

Leading  public  events,  §  339. 

Leading  features  of  geography,  §  3-tO. 


I.    GENERAL  RULES. 

§  276.  As  a  general  rule,  a  court  in  making  up  its  conclusions 
is  to  take  no  notice  of  facts  not  in  evidence.     In  the   Court  to 
Roman  law  this  maxim,  as  held  by  the  classical  jurists,   notfce  of 
is  understood  as  precluding;  the  judex  from  allowing  his    evidential 

i  o  •/  o  facts  nQj  jn 

judgment  to  be  influenced  by  any  facts  which  are  the   evidence, 
proper  objects  of  evidence,  but  which  were  not  put  in  evidence.* 
In  the  same  sense  this  maxim  has  been  accepted  by  our  own 
courts.^ 

§  277.  Certain  facts,  or  conclusions  from  facts,  liowever,  may 
be  noticed,  which  may  be  styled  non-evidential,  from   ^^^j^^ 
the  fact  that  tliev  are  not  the  proper  objects  of  evidence,   dentiai 

11  11  1         •      T    •    n  -1     facts  may 

and  that  consequently  they  may  be  judicially  noticed  bejudicial- 
by  the  courts.  These  facts  will  be  presently  considered.  ^  ""  ""^  " 
§  278.  Reason  is  to  be  treated  as  a  coordinate  factor  with 
evidence.  The  adjudicating  tribunal  must  determine, 
(1.)  whether  a  particular  fact  really  is  evidence;  (2.) 
what  it  is  to  be  interpreted  as  meaning  ;  ^  (3.)  how  far 
it  is  to  be  modified  by  other  testimony  in  the  case ; 


Reason  a 
CO  -rdinate 
factor 
with  evi- 
dence. 


^  See  Endemann's  Beweislehre, 
§21. 

"^  Mayor  of  Beverley  v.  Atty.  Gen. 
6  11.  of  L.  Cas.  333  ;  Bradstreet  v. 
Potter,  16  Pet.  317  ;  Mills  v.  Brown, 
IG  Pet.  525  ;  Bell  v.  Bruen,  1  How- 
ard, 169  ;  Providence  v.  Babcock,  3 
Wall.  240  ;  Wheeler  v.  Webster,  1  E. 
D.  Smith  (N.  Y.),  1  ;  Anderson  v.  11. 
R.  54  N.  Y.  331  ;  Bain  v.  Wilson,  10 
Oh.  St.  18  ;  Odoin  v.  Shackleford,  44 

VOL.    I.  17 


Ala.    331.      See    particularly   supra, 
§§  1-4. 

8  Of  this  duty  one  of  the  most 
striking  illustrations  is  the  ri<Tht  to 
interpret  words.  See  R.  v.  Wood- 
ward, 1  Moo.  C.  C.  323,  and  cases 
cited  in  Wh.  Cr.  Law,  §  377;  de- 
menti V.  Golding,  2  Camp.  25  ;  Shu- 
brick  V.  State,  2  S.  C.  21  ;  State  r. 
Abbott,  20  Vt.  537  ;  Com.  v.  Knee- 
land,  20  Pick.  22D. 
257 


§  279.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


(4.)  how  far  it  is  to  be  modified  by  natural  and  other  plienomena 
of  which,  as  we  will  hereafter  see,  the  court  is  bound  to  take 
notice.^ 

§  270.  The  policy  of  scholastic  jurisprudence  was  to  treat  the 
judge  as  a  mere  automaton,  destitute  of  any  prior  knowledge 
whether  legal  or  lay,  his  sole  office  being  to  determine  whether 
or  no  the  case  in  court  comes  up  to  a  hypothetical  case  laid  down 
in  the  books.  By  the  glossators  and  post-glossators,  copious 
commentaries  were  prepared,  in  which  a  positive  legal  character 
was  assigned  to  every  case  which  they  could  imagine.  In  the 
framing  of  such  cases,  in  fact,  the  canonists,  who  were  trained  in 
the  casuistical  studies  requisite  for  a  proper  use  of  the  confes- 
sional, were  peculiarly  skilled  ;  and  few  things,  in  the  litera- 
ture of  those  days,  are  so  remarkable  as  the  extraordinary  and 


^  See  this  developed  by  Hooker, 
when  discussing  the  analogical  rela- 
tions of  reason  and  revelation. 

"  If  only  those  things  be  necessary, 
as  surely  none  else  are,  without  the 
knowledge  and  practice  whereof  it  is 
not  the  will  and  pleasure  of  God  to 
make  any  ordinary  grant  of  salvation; 
it  may  be  notwithstanding,  and  often- 
times hath  been  demanded,  how  the 
books  of  Holy  Scripture  contain  in 
them  all  things  necessary,  when  of 
things  necessary  the  very  chief  is  to 
know  what  books  we  are  bound  to  es- 
teem holy,  which  point  is  confessed 
impossible  for  the  scripture  itself  to 
teach.  Whereunto  we  may  answer 
with  truth,  that  there  is  not  in  the 
world  any  art  or  science,  which,  pro- 
posing unto  itself  an  end  (as  every 
one  doth  some  end  or  other),  hath 
been  therefore  thought  defective,  if  it 
have  not  delivered  simply  whatsoever 
is  needful  to  the  same  end ;  but  all 
kinds  of  knowledge  have  their  certain 
bounds  and  limits  ;  each  of  them  pre- 
supposeth  many  necessary  things 
learned  in  other  sciences  and  known 
beforehand.  He  that  should  take 
upon  him   to  teach   men   how  to  be 

258 


eloquent  in  pleading  causes,  must 
needs  deliver  unto  them  whatsoever 
precepts  are  requisite  unto  that  end ; 
otherwise  he  doth  not  the  thing 
which  he  taketh  upon  him.  Seeing, 
then,  no  man  can  plead  eloquently 
unless  he  be  able  first  to  speak,  it 
foUoweth  that  ability  of  speech  is  in 
this  case  a  thing  most  necessary. 
Notwithstanding  every  man  would 
think  it  ridiculous,  that  he  which 
undertaketh,  by  writing,  to  instruct 
an  orator,  should  therefore  deliver  all 
the  precepts  of  grammar,  because  his 
profession  is  to  deliver  precepts  neces- 
sary unto  eloquent  speech,  yet  so  that 
they  which  are  to  receive  them  be 
taught  beforehand  so  much  of  that 
which  is  thereunto  necessary,  as  com- 
prehendeth  the  skill  of  speaking." 
.  .  .  .  "  It  sufEceth,  therefore, 
that  nature  and  scripture  do  serve  in 
such  full  sort,  that  they  both  jointly, 
and  not  severally  either  of  them,  be 
so  complete,  that  unto  everlasting  fe- 
licity we  need  not  the  knowledge  of 
anything  more  than  these  two  may 
easily  furnish  our  minds  with  on  all 
sides."  Hooker's  Ecclesiast.  Pol. 
Book  I.i'ch.  xiv. 


CHAP,  v.]  JUDICIAL   NOTICE.  [§  280. 

sometimes  abnormal  combinations  of  contingencies  which  they 
devised.  Those  combinations  were  intended  to  anticipate  every 
future  event;  to  each  combination  a  certain  legal  judgment 
was  assigned  ;  and  when  a  new  case  did  not  exactly  repro- 
duce one  of  these  norms,  then  such  new  case  was  to  be  ruled 
by  the  law  of  the  norm  that  was  nearest.  Nothing  was  to  be 
left  to  the  convictions  of  the  judge  ;  there  was  no  appeal  to  his 
learning  or  experience  ;  everything  was  to  be  determined  by 
the  law  adjudicating  the  particular  case  in  advance.  "  Quamvis 
falsum  probatur,  probatio  esse  non  desinit,  ut  recta  sit  proba- 
tio,  satis  est,  ut  in  forma  non  peccet,  licet  in  materia  deficiat."  ^ 
The  judge  had  nothing  to  do  with  the  distinctive  merits  of  the 
case.  He  was  to  determine  solely  secundum  allegata  et  probata  ; 
the  allegata  consisting  only  of  the  points  to  which  a  subtle  sys- 
tem of  special  pleading  narrowed  the  issue  ;  the  probata  fre- 
quently only  of  arbitrary  legal  assumptions,  a  few  relics  of  which 
have  come  down  to  us  under  the  titles  of  presumptions  of  law. 
The  use,  by  the  judge,  of  reason  in  the  application  of  law  to  fact 
was  considered  as  monstrous,  as  was  the  use  of  reason  by  the  in- 
dividual in  the  interpretation  of  the  dogmas  of  the  church.  The 
judge  was  required  to  take  that  decision,  given  by  the  casuists, 
which  best  fitted  his  case ;  to  seek  for  a  decision  which  the  jus- 
tice of  the  case  might  distinctively  demand,  was  not  within  his 
power.  He  was  not  to  act  propria  conscientia.,  except  when  as 
papa  et  imperator,  superiorem  judieem  non  recognovit!^ 

§  280.  So  far  as  concerns  laiv^  this  is  well  enough,  as  an  in- 
ferior judge  must  be  bound  by  what  is  the  settled  law.  But  as 
far  as  concerns  the  value  to  be  attached  to  evidence,  the  practice 
worked  great  injustice.  Certain  kinds  of  evidence  had  assigned 
to  them  certain  effective  valuations;  and  when  such  evidence 
was  introduced,  these  valuations  were  to  rule  the  case,  no  matter 
what  might  be  the  merits.  And  as  almost  every  item  of  evidence 
after  a  while  had  thus  attached  to  it  a  peremptory  probative 
force,  scarcely  a  case  could  arise  in  which,  even  when  the  issue 
was  fairly  presented,  it  could  be  fairly  tried.  No  doubt  in  many 
cases  right  results  were  reached,  but  this  was  by  wrong  processes. 

^  Masc.  qu.  2,  nr.  13.  '  See  citations  to  this  point  in  En- 

(leniann's  Beweislehre,  27. 

259 


§  281.]  THE   LAW    OF   EVIDENCK.  [BOOK  II. 

A  will  made  under  the  influence  of  a  child,  for  instance,  would 
primd  facie  be  ruled  void,  for  the  reason  that  it  is  a  presumption 
of  law  that  a  will  made  under  the  influence  of  another  is  not  the 
testator's  free  act.  It  would  not  be  within  the  judge's  power  to 
go  into  the  merits  of  the  case,  and  to  inquire  whether  the  influ- 
ence exerted  was  such  as  really  destroyed  the  testator's  moral 
freedom.  When  witnesses  differed,  preponderance  in  number 
was  to  decide  ;  and  consequently  the  judex,  on  a  question  of  fact, 
had  to  rule  in  favor  of  three  whom  he  knew  spoke  falsely,  against 
two  whom  he  knew  spoke  truly.  So  it  was  that  by  a  series 
of  rules,  first  determining  competency,  and  then  credibility,  the 
scholastic  jurists  decided  in  advance  not  only  what  witnesses  were 
competent,  but  to  what  extent  each  was  to  be  believed.  The 
last  of  these  restrictions  (those  determining  credibility)  the  Eng- 
lish common  law  never  received.  The  first  (those  excluding 
persons  interested)  we  have  now  by  statute  removed. 

§  281.  Whether  a  judge  can,  on  his  own  motion,  put  to  a 
,  ,  witness  questions  independently  of   counsel,  so   as   to 

Judge  may,         .  ^         ,  .  . 

of  his  own    bring  out  points   counsel   either   designedly  or  unde- 

terroga'te  signcdly  ovcrlook,  is  much  disputed  by  modern  com- 
wi  ness.  mentators  on  the  Roman  law.  On  the  one  side  it  is 
urged,  in  conformity  with  the  scholastic  view,  that  the  judge 
is  confined  to  the  proof  adduced  by  the  parties.  On  the  other 
side  it  is  insisted  that  it  is  absurd  for  a  judge,  with  a  witness  be- 
fore him,  not  to  do  what  he  can  to  elicit  the  truth.  So  far  as 
concerns  the  abstract  principle,  writers  on  the  English  common 
law  repeatedly  affirm  the  scholastic  view  that  the  judge  must 
form  his  judgment  exclusively  on  the  proofs  brought  forward  by 
the  parties.  So  far  as  concerns  the  practice,  judges,  both  in  Eng- 
land and  in  the  United  States,  do  not  hesitate  to  interrogate  a 
witness  at  their  own  discretion,  eliciting  any  facts  they  deem  im- 
portant to  the  case.  For  this  purpose  not  only  may  a  witness 
be  recalled  by  the  judge,i  but  new  facts  may  be  brought  out  by 
the  judge's  personal  interposition .2 

J  R.  V.  Watson,  6  C.  &  P.   653  ;        ^  See  a  curious  illustration  of  this 
Middleton  v.  Earned,  4  Exch.  R.  243;     by  Sir  John  Jervis,  given  infra,  §  347, 
Com.  V.  Galavan,  9  Allen,  271  ;  Epps     note. 
V.  State,  19  Ga.  102.     Infra,  §  496. 
260 


CHAP,  v.]  JUDICIAL  NOTICE.  [§  283. 

§  282.  It  will  be  presently  noticed  that  tlie  judge  not  only- 
may,  but  should,  have  recourse,  in  making  up  liis  opinion 
of  the  law  of  the  case,  to  the  literature  of  his  profession  consult 
even  in  matters  not  referred  to  by  counsel ;  though  if  he  ie<,'ai  litera- 
make  an}^  new  point,  it  is  proper  for  him  to  state  it  to  ^^'^^' 
counsel,  so  as  to  open  it  to  their  criticism.  But  he  is  not  limited 
in  his  researches  to  legal  literature.^  He  may  consult  works  on 
collateral  sciences  or  arts,  touching  the  topic  on  trial.^  He  may 
draw,  for  instance,  on  mythology,  in  order  to  determine  the 
meaning  of  similes  in  an  ambiguous  writing.^  He  may  refer  to 
almanacs ;  *  he  may  appeal  to  his  own  memory,  for  the  meaning 
of  a  word  in  the  vernacular ;  ^  he  may,  as  to  the  meaning  of 
terms,  refer  to  dictionaries  of  science  of  all  classes  ;  ^  he  may  de- 
termine the  meaning  of  abbreviations  of  Christian  names  and 
offices,  and  of  other  common  terms ;  '^  as  to  a  point  of  political 
history  (e.  g.  the  recognition  of  a  foreign  government)  he  may 
consult  the  executive  department  of  the  state ;  ^  he  may  cause 
inquiry  to  be  made  as  to  the  practice  of  other  courts  ;  ^  and  Lord 
Hardwicke  went  so  far  as  to  inquire  of  an  eminent  conveyancer 
as  to  a  rule  of  conveyancing  practice.^^  And  so  the  court  may 
have  recourse  to  the  legislative  rolls  to  determine  the  construc- 
tion of  a  statute.ii 

§  283.  While  it  is  the  duty  of  the  parties  to  bring  before  the 

^  See  "Willoughby  v.  Willoughby,  1  ^  Clemcnti  v.  Golding,  2  Camp.  25. 

T.  R.   772;  U.  S.  V.  Teschraaker,  22  As  an  illustration  of  this,  see  Brown 

How.  ,392  ;  and  infra,  §  335.  v.  Piper,  infra,  §  335. 

2  As  illustrating  this,  see  rulings  on  ''  Stephen    v.    State,   11    Ga.    225; 

insanity,  cited  in  Whart.  &  St.   Med.  Moseley  y.  IMastin,  37  Ala.  21(5;  though 

Juris.    §§   108,  303  ;   and    also   infra,  see   Russell   v.   Martin,  15   Tex.  238  ; 

§  665.  Weaver  v.  MeElhenon,  13  Mo.  89. 

8  lioareu.  Silverlock,  11  Ad.  &  El.  «  Taylor  r.  Barclay,  2  Sim.  221. 

N.  S.  624.  9  Doe  v.  Lloyd,  1  M.  &  C.r.  685,  re- 

*  Page   V.   Faucet,    Cro.  El.   227  ;  lying  on  Worsiey  v.  Fillisker,  2  Roll. 

Sutton  V.  Darke,  5  H.  &  N.  649  ;  All-  R.  119;  and  see  Chandler  v.  Grieves, 

man   v.  Owen,  31  Ala.  167;   Sprowl  v.  2  H.  Bl.  606,  n.  a,  where  the  common 

Lawrence,  33  Ala.  674.  pleas  directed  an  inquiry  of  the  ad- 

^  R.    V.  Woodward,  1    Mood.  C.  C.  miralty  court  as   to  a  j)()int  of  admi- 

323  ;  Clementi  v.   Golding,   2   Camp,  rally  law. 

25  ;  Mouflet   v.  Cole,  L.   R.   7  Excli.  ^°  Willoughby  v.  Willoughby,  1  T. 

70;  Com.  v.  Kneeland,  20  Pick.  229  ;  R.  772. 

thoui^di  see  as  to  local  or  class  idioms,  "   U.  i'.  Jeffries,  1  Str.  2146;  Spring 

Bodmin  Mines  Co.  23  Bcav.  370.  v.  Eve,  2  Moo.  240.     Infra,  §  295. 

261 


§  284.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

coiart  tlie  law  on  which  they  rely,  the  court  is  bound  to  verify 
Court  of  their  statements,  and  to  determine  on  its  own  responsi- 
mourn  bility  what  the  law  really  is.  Even  points  of  law  omit- 
may  take      ^gfj  ^y  counsel  may  be  taken  up  by  the  court.     Thus 

notice  of         _  ''  •'  . 

law.  judges  have  repeatedly  refused  to  try  frivolous  wagers  ;  ^ 

and  in  one  notorious  instance,  Lord  Loughborough,  against  the 
protest  of  both  parties,  refused  to  try  a  wager  as  to  a  game  of 
cards.2  And  a  judge  will  dismiss  an  action  on  a  transaction 
violating  the  revenue  laws,  though  the  point  be  not  taken  by  the 
defence.^  So  a  judge  may  of  his  own  motion  prevent  the  dis- 
closure of  confidential  professional  communications.*  The  classi- 
cal Roman  law  (as  distinguished  from  the  scholastic)  has  em- 
phatic injunctions  to  this  effect.  "  Non  dubitandura  est,  judi- 
cem,  si  quid  a  litigatoribus  vel  ab  his,  qui  negotiis  adsistunt, 
minus  fuerit  dictum,  id  supplere,  et  proferre,  qviod  sciet  legibus 
et  juri  publico  convenire."  ^  Yet  this  is  on  the  supposition  that 
the  point  to  be  decided  is  one  of  principle,  submitted  as  such  by 
the  parties,  on  which  the  judgment  of  the  court  is  invoked  ;  and 
even  in  such  case,  it  is  proper  for  a  judge,  before  deciding  the 
case  on  the  special  points  supplied  by  himself,  to  state  such 
points  to  counsel,  and  call  for  a  reargument  if  desired.  But 
giving  this  prerogative  its  widest  range,  it  is  held  not  to  justify 
a  judge  in  interposing  of  his  own  motion  technical  objections, 
which  interfere  with  a  decision  of  the  case  on  the  merits,  and 
which  a  party  may  intentionally  decline  to  invoke.  "  Non  quid- 
quid  judicis  potestati  permittitur,  id  subjicitur  juris  necessi- 
tati."  ^  In  such  cases,  that  which  is  in  this  respect  within  the 
judge's  power  is  not  laid  on  him  as  a  necessity  of  law. 

§  284.  So  far  as  concerns  the  revealed  law  of  God,  the  courts 
So  of  Di-  take  judicial  notice  of  Holy  Scriptures  in  three  distinct 
vine  law.  relations.  First,  certain  portions  of  the  Bible  are 
adopted  as  a  normal  rule  by  the  ecclesiastical  law,  which,  in  the 
United  States,  lies  at  the  base  of  our  common  law  of  marriage. 
Secondly,  Christianity  in  its  general  incidents,  has  been  declared 

1  See  Da  Costa  v.  Jones,  2  Cowp.         8  Kessel  v.  Albetis,  56  Barb.  362. 
729;  Ditchburn  v.  Goldsmith,  4  Camp.         *  See  infra,  §  538  ;  People  v.    At- 
152;  Brown  v.  Leeson,  2  H.  Black,     kinson,  40  Cal.  284. 

48.  6  L.  xi.  C.  ut  desunt  Advocat.    We- 

2  See    Campbell's    Life    of     Lord     ber,  HeflFter's  ed.  20. 
Loughborougb,  passim.  «  L.  40,  pr.  D.  de  judiciis. 

262 


CHAP,  v.]  JUDICIAL  NOTICE.  [§  287. 

to  be  part  of  the  common  law  of  the  land  ;  a  proposition  which, 
with  its  due  qualification,  it  is  not  intended  here  to  discuss,  but 
which  presupposes  an  acquaintance  by  the  courts  with  the  author- 
itative records  of  Christianity.^  Thirdly,  Christianity  in  its  eth- 
ical relations,  is,  apart  from  its  divine  authority,  a  constituent 
element  in  modern  ethics,  of  whose  laws  the  courts  are  supposed 
to  be  judicially  cognizant.  In  addition  to  the  revealed  laws  of 
God,  we  must  also  assume  the  knowledge  by  the  court  of  His 
natural  laws,  such  as  are  ordinarily  admitted  by  experience,  or 
demonstrated  by  science.^ 

§  285.  The  law  of  nations,  being  coextensive  with  civilization, 
must  also  be  iudicially  noticed.     This  has  been  extended    .   , 

.  .         .  And  so  of 

to  include  the  English  rules  of  navigation  adopted  by  law  of 
orders  in  council,  of  January  9,  1863  (prescribing  the 
sorts  of  lights  to  be  used  on  British  vessels),  and  by  our  Act  of 
Congress  of  1864 ;  these  rules  having,  before  the  close  of  the 
year  1864,  been  accepted  as  obligatory  by  more  than  thirty  of 
the  principal  commercial  states  of  the  world,  including  most  of 
those  having  any  shipping  on  the  Atlantic  Ocean.^ 

§  286.  So,  on  the  same  principle,  each  court  is  bound  to  take 
judicial   notice  of   the  domestic    laws  to  which  it   is    .   , 
subject.     As  component  parts  of  such  we  may  notice   domestic 
the  common  law ;  and  the  statute  law,  both  as  to  its 
character  and  the  time  when  it  goes  into  operation.^ 

II.  CODES   AND  THEIR  PROOF. 
§  287.  An  ordinance  or  statute  of   the  United  States  is  not 
"  foreign,"   so   far   as   concerns   the   particular   states.    Federal 
Hence  it  has  been  held,  that  a  state  court  will  take  ju-   1^,"^^,"^ 
dicial  notice  of  the  federal  Constitution  and  its  amend-   '^'^  *'*^«*: 

1  See  Whart.  Cr.  Law,  §§  2536-47,     Md.  138  ;    State  v.    Jarrett,  17   Md. 
where  the  cases  are  grouped.  309  ;    Springfield    v.     Worcester,     2 

2  Infra,  §  355.  Cush.  52;  State  i'.  Bailey,  16  Ind. 
'  The  Scotia,  14  Wallace,  171.  46  ;  Pierson  v.  I?aird,  2  Greene  (la.), 
<  Cassiday  v.  Stewart,   2   M.  &  G.     235;   Berliner  v.  Waterloo,   14  Wise. 

457;  Sims  y.  Maryett,  1 7  Q.  B.  292  ;  378;    Howard    Co.    in    re,    15    Kans. 

R.  y.  Sutton,  4  M.  &  S.  542 ;  Wason  194;    Dolph    v.    Barney,    5    Oregon, 

V.  Walter,   8  B.  &  S.  671  ;  5.  C.  L.  191  ;  State  i'.  O'Conne'r,  13  La.  An. 

R.  4  Q.  B.    73 ;   Marbury  v.  Madison,  486.     The    federal    courts    take    ju- 

1    Cranch,    103  ;    Jones   v.    Ilays,    4  dicial  notice  of    the   sessions  of  the 

M'Lean,  521 ;    Canal  Co.  v.  R.  R.  4  state  courts.      Cheever  t>.  Wilson,  9 

Gill  &  J.   1  ;  Hammond  v.   Inloes,  4  Wall.  108. 

263 


§  288.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


nor  the        ments  ;  ^  and  of  federal  public  statutes.^     And  it  has 

Btafe  laws  ^ 

to  the  been    held   that  a  state    court  will   recognize  without 

courts.  proof  state  statutes  incorporated  in  acts  of  Congress.^ 

The  state  courts,  under  this  rule,  take  cognizance  of  federal 
statutes ;  and  the  federal  courts  take  cognizance  of  state  stat- 
utes.'i 


§  288.  So  far,  however,  as  concerns  the  international  relations 
of  the  states  of  the  American  Union,  since  these  states, 
under  the  Constitution  of  the  United  States,  are  foreign 
to  each  other  in  all  cases  except  those  in  which  the  fed- 
eral Constitution  or  separate  compact  provides  other- 
wise ;  it  follows  that  the  courts  of  one  state  will  not 
take  judicial  notice  of  the  statutes  of  another  state.  If  such 
statutes  are  different  from  the  domestic  law,  they  must  be 
proved.^    At  the  same  time,  when  the  courts  of  one  state  recog- 


Statutes  of 
one  of  the 
United 
States  are 
"foreign  " 
as  to  other 
states. 


1  Graves  v.  Keaton,  3  Coldw.  8. 

2  Kessel  v.  Albetis,  56  Barb.  362; 
Bajly  V.  Chubb,  16  Grat.  284;  Dick- 
enson V.  Breeden,  30  111.  279  ;  Seniple 
V.  Hagar,  27  Cal.  163  ;  Morris  v.  Da- 
vidson, 49  Ga.  361;  Papin  v.  Ryan,  32 
Mo.  21  ;  Rice's  Succession,  21  La. 
An.  614 ;  AVright  r.,  Hawkins,  28 
Tex.  452;  Mims  v.  Swartz,  37  Tex. 
13. 

8  Flanigen  v.  Ins.  Co.  7  Penn.  St. 
306. 

4  Course  v.  Stead,  4  Dal.  27  n.;  Ow- 
ings  V.  Hull,  9  Peters,  607  ;  Penning- 
ton V.  Gibson,  16  How.  65  ;  Cheever 
V.  Wilson,  9  Wall.  108  ;  Griffing  v. 
Gibb,  2  Blatch.  519  ;  Gordon  v.  Ho- 
bart,  2  Sum.  402;  Jones  v.  Hays,  4 
McL.  521  ;  Mewster  v.  Spalding,  6 
McL.  24  ;  Merrill  v.  Dawson,  Hemp. 
563. 

5  Territt  v.  Woodruff,  19  Vt.  182  ; 
Taylor  v.  Boardman,  25  Vt.  581; 
Hempstead  v.  Reed,  6  Conn.  480; 
Chanoine  v.  Fowler,  3  Wend.  1 73  ; 
Hosford  V.  Nichols,  1  Paige,  220  ; 
Miller  v.  Avery,  2  Barb.  Ch.  582;  Van 
Buskirk  v.  Mulock,  3  Harris.  (N.  J.) 
184;  Ripple  r.  Ripple,  1  Rawle,  386; 

264 


State  V.  Hinchman,  27  Penn.  St.  4  79; 
Baily  v.  McDowell,  2  Harring.  (Del.) 
34 ;  Irwing  v.  McLean,  4  Blackf.  52 ; 
Billingsley  v.  Dean,  11  Ind.  331  ; 
Johnson  v.  Chambers,  12  Ind.  112  ; 
Davis  V.  Rogers,  14  Ind.  424  ;  Mason 
V.  Wash,  1  Breese,  16  ;  Carey  v.  R.  R. 
5  Iowa,  357;  Taylor  v.  Runyan,  9 
Iowa,  522;  Rape  w.  Heaton,  9  Wise. 
328 ;  Brimhall  r.  Van  Campen,  8  Minn. 
13;  Hoyt  v.  McNeil,  13  Minn.  390; 
Beauchamp  v.  Mudd,  Hard.  (Ky.) 
163;  Cook  V.  Wilson,  1  Litt.  Cas. 
(Ky.)  437;  Dorsey  i;.  Dorsey,  5  J. 
Marsh.  280;  Stephenson  v.  Bannister, 
3  Bibb,  369;  State  v.  Twitty,  2 
Hawks,  248  ;  Whitesides  v.  Poole,  9 
Rich.  S.  C.  68;  Stanford  v.  Pruet,  27 
Ga.  243;  Simms  v.  Ex.  Co.  38  Ga.  129; 
Drake  v.  Glover,  30  Ala.  382  ;  Mobile 
R.  R.  V.  AVhitney,  39  Ala.  468;  An- 
derson V.  Folger,  11  La.  An.  269; 
Hemphill  v.  Bank,  6  Sm.  &  M.  44; 
Jones  V.  Laney,  2  Tex.  342  ;  Anderson 
V.  Anderson,  23  Tex.  639 ;  Newton  v. 
Cocke,  10  Ark.  169.  See,  however, 
Foster  v.  Taylor,  2  Overt.  191  ; 
Herschfeld  v.  Dexel,  12  Ga.  582; 
Butcher  v.  Brownsville,  2  Kans.  70. 


CHAP,  v.]  JUDICIAL  NOTICE.  [§  290.  ' 

nize  the  statute  of  another  state  as  law  in  such  state,  this  recog- 
nition may  be  permanently  maintained  by  the  courts  of  the  for- 
mer state,  until  there  is  proof  of  the  change  of  such  statute.^ 
And  it  has  been  held  by  the  supreme  court  of  the  United 
States  that  when  the  laws  of  one  state  recof^nize  official  acts 
done  in  pursuance  of  the  laws  of  another  state,  the  courts  of 
the  former  state  may  take  judicial  cognizance  of  the  laws  of  the 
latter  state,  so  far  as  it  is  necessary  to  determine  the  validity 
of  the  acts  done  in  conformity  with  such  laws.^ 

§  289.  In  the  federal  courts,  the  statutes  of  the  several  states 
of  the  American  Union  may  be  read  from  the  official 
printed  volume,  with  the  seal  or  other  authentication   niay  be 
of  the  state,  without  further  proof,  as  prima  facie  au-   f,™,^^'^ 
thentic,^  and  in  some  states  this  is  permitted  at  com-   Pointed 

'  ^  ^  volume. 

mon   law,*  in   others  by  statute.^     At  common   law, 
however,  and  in  strict  practice,  such  statute  should  be  certified 
either  by  the  secretary  of  state,  or  by  the  clerk  of  a  supreme 
judicial  court,  with  a  certificate  of  the  governor  of  the  state  as 
to  the  official  capacity  of  the  secretary  or  clerk.*' 

§  290.  To  a  judicial  notice  of  domestic  statutes  it  is  a  pre- 
requisite that  the  court  should  determine  what  statutes    ^ 

.  Court  may 

are  in  force.     For  this  purpose  the  court  may  refer  to   determine 
the  authentic  records  of  the  proceedings  of  the  legisla-   whether 

1  Graham  v.  Williams,  21  La.  An.     150;  Cutler  v.  "Wright,  22  N.  Y.  472; 
594.  Toulandou    v.   Lachenmeyer,  6  Abb. 

2  Carpenter  v.  Dexter,  8  Wall.  513.     Pr.  N.   S.   215;  Heberd  v.  Myers,  5 
8  Craig  V.  Brown,  Pet.  C.  C.   352  ;     Ind.  94;  Crake  v.  Crake,  18  Ind.  156; 

Hinde  v.  Vattier,  5  Pet.  308;  Owings  Paine  v.  Lake  Erie,  31  Ind.  283;  Lat- 

V.  Hull,  9  Pet.  G07  ;  Pease  v.  Peck,  18  terett  v.  Cook,    1    Iowa,   1  ;    State  i-. 

How.  U.   S.  595.     See  Commerc.  Bk.  Check,   13  Ired.    L.  114;   Hanrick  t-'. 

V.  Patterson,  2  Cranch,  346.  Andrews,   9  Port.  (Ala.)  9;  Bright  v. 

*  Emery  v.  Berry,  2G  N.  H.  (8  Fos-  AVhite,    8   Mo.    421  ;    Biesenthall    v. 

ter)  48G  ;  State  v.  Abbott,  29  Vt.  GO;  Williams,   1   Duvall,   329.     That  the 

Mullen   V.   Morris,  2   Penn.    St.  85  ;  seal  of  the  state  is  a  sullicient  authen- 

Ilunter  v.  Fulcher,  5   Rand.  Va.  126  ;  tication,  see   U.    S.  v.  Johns,  4   Dall. 

Wil.'^on  r.  Lazier,  11  Grat.  4  77;  Bark-  412;    Robinson  r.    Gihuan,    10    Me. 

man  v.  Hopkins,  11  Ark.  (6  English)  299  ;  State  v.  Carr,  5  N.  H.  367. 

157  ;  Charlesworth  v.  Williams,  16  111.  o  U.  S.  v.  Johns,  4  Dall.  412;  Rob- 

338  ;    Com.  Ins.   Co.    v.  Labuzan,   15  inson  i'.  Gilman,  10  Me.  299  ;   State  i'. 

La.  An.  295  ;  Stewart  v.  Swanzy,  23  Carr,    5  N.    II.   3G7;    Rice's    Succes- 

Miss.  502.  sion,  21  La.  An.  614. 

^  Merrifield   v.    Bobbins,    8    Gray, 

265 


§  290.] 


THE  LAW   OF  EVIDENCE. 


[book  II. 


statute  ha3  ture.^  Has  a  bill,  for  instance,  received  a  constitu- 
aiiy  and  tional  majority  ?  Has  it  been  passed  over  the  gov- 
tk)naiiy'  ernor's  veto  ?  Did  it  pass  in  a  constitutional  shape  ? 
passed.  Does  it,  for  instance,  as  is  required  by  the  constitutions 
of  several  states,  relate  to  but  one  subject,  which  is  expressed  in 
the  title  ?  Questions  of  this  kind  are  vital  when  a  court  has  to 
determine  whether  a  statute  exists  ;  but  questions  of  this  kind 
cannot  be  solved  without  resort  to  the  records  of  the  legislature. 
It  is  for  the  court,  with  such  aid,  to  determine  whether  the  stat- 
ute in  dispute  has  passed.  For  this  purpose  the  original  record 
is  the  best  evidence,  unless  the  printed  journals  be  made  so  by 
statute.^  It  is  scarcely  necessary  to  say  that  a  statute  duly  cer- 
tified is  presumed  to  have  been  duly  passed  until  the  contrary 
appear.^     It  has  been  stated  above  that  it  is  within  the  province 


1  See  Sedgwick  on  Statutory  Law, 
2d  ed.  55. 

2  Sedgwick's  Statu.  Law,  2d  ed. 
55;  Cooley's  Const.  Lim.  135;  Gard- 
ner V.  Collector,  6  Wall.  499;  Opinion 
of  Judges,  35  N.  H.  579  ;  Opinion  of 
Justices,  52  N.  H.  622  ;  Thomas  v. 
Dakin,  23  Wend.  9  ;  Warner  v.  Beers, 
23  Wend.  103;  People  v.  Purdy,  2 
Hill,  31  ;  Purdy  v.  People,  4  Hill,  384; 
Commercial  Bank  v.  Sparrow,  2  Denio, 
97;  People  v.  Briggs,  50  N.  Y.  553; 
People  V.  Board,  52  N.  Y.  556  ;  Peo- 
ple V.  Commissioners,  54  N.  Y.  276  ; 
Harris  v.  People,  59  N.  Y.  599 ;  Com. 
V.  Dickinson,  9  Phil.  (Pa.)  561 ;  Os- 
burn  V.  Staley,  5  W.  Va.  85  ;  For- 
dyce  V.  Godman,  20  Oh.  (N.  S.)  1  ; 
People  V.  Mahoney,  13  Mich.  481 ; 
People  V.  Hurlburt,  24  Mich.  55. 
See,  also,  infra,  §  295  ;  Turley  v. 
Logan,  17  111.  151  ;  Prescott  v.  Canal, 
19  111.  324  ;  Holcomb  v.  Davis, 
56  HI.  413  ;  People  v.  De  Wolf,  62 
111.  253  ;  State  v.  Young,  47  Ind.  150; 
Williams  v.  State,  48  Ind.  306  ;  Clare 
V.  State,  5  Iowa,  509 ;  State  v.  Dous- 
man,  28  Wise.  541 ;  State  v.  Piatt,  2 
Rich.  (N.  S.)  150  ;  Morton  v.  Comp- 
troller, 4  S.  C.  430 ;  Allen  v.  Tison, 
50  Ga.  374;  Conner,  ex  parte,  51  Ga. 

266 


571;  Moody  v.  State,  48  Ala.  115; 
Walker  v.  State,  49  Ala.  429 ;  Bled- 
soe V.  State,  5  Miss.  13 ;  Smith  v. 
Com.  8  Bush,  108  ;  Hind  v.  Rice,  10 
Bush,  528;  Logan  v.  State,  3  Heisk. 
442  ;  Bm-r  v.  Ross,  19  Ark.  250 ;  Mar- 
tin w.  Francis,  13  Kans.  220;  Antonio 
t;.  Gould,  34  Tex.  49  ;  State  v.  Shadle, 
41  Tex.  404  ;  State  v.  McCracken,  42 
Tex.  383.     Infra,  §  296. 

*  People  V.  Highways,  54  N.  Y. 
276  ;  Hensoldt  v.  Petersburg,  63  111. 
157.  See,  also,  as  to  admissibility  of 
legislative  journals,  infra,  §  637. 

"  When  it  is  necessary  to  inquire 
by  what  vote  a  law  was  passed,  the 
judges  are  to  determine  from  the 
printed  statutes,  or  from  the  laws  on 
file  in  the  secretary  of  state's  office, 
whether  the  requisite  vote  was  re- 
ceived. Upon  such  an  inquiry  the 
printed  volume  is  presumptively  cor- 
rect, and  the  original  act  is  conclu- 
sive. See  chap.  306,  Laws  of  1842. 
How  such  a  question  was  to  be  inves- 
tigated was  much  considered  in  the 
earlier  cases  arising  under  the  Free 
Banking  Act  of  1838  ;  and  the  discus- 
sions which  then  took  place  led  the 
way  to  the  subsequent  determination 
of  the  courts  that  it  belonged  to  the 


CHAP,  v.] 


JUDICIAL   NOTICE. 


[§  290. 


of  a  court  to  determine  whether  a  statute  conforms  to  a  consti- 
tutional limitation,  requiring  that  no  statute  shall  be  operative 
whose  title  does  not  give  notice  of  its  contents.  Ordinarily, 
however,  it  is  enough  if  the  title,  under  such  a  limitation,  gives 
such  notice  of  the  subject  matter  of  the  statute  as  to  lead  to  an 
examination  of  its  clauses.^     A  court  cannot  resort  to  the  leg- 


functions  of  the  judges  to  investigate 
for  themselves  and  to  declare  what  is 
the  law,  whether  common  or  statute. 
People  V.  Purdy,  2  Hill,  31  ;  S.  C.  in 
error,  4  Hill,  384  ;  De  Bow  v.  The 
People,  1  Den.  9;  Commercial  Bank 
V.  Sparrow,  2  Den.  97  ;  People  v. 
Devlin,  33  N.  Y.  269.  The  law  in 
question  does  not  appear  either  upon 
the  printed  statute  book  or  upon  the 


first  section  is  conceded  to  be  consti- 
tutional. The  real  question  then  is, 
whether  the  second  section  is  germane 
to  the  same  subject,  giving  to  the 
second  section  the  interpretation  it 
may  reasonably  have.  We  think  it 
falls  within  the  general  subject  of  the 
title.  It  is  the  duty  of  the  court  to 
reconcile  the  different  parts  of  a  law, 
if  it  can  be  reasonably  done,   rather 


original  act  to  have  been  passed  by  a  than  to  declare  any  part  void,  and 
two  third  vote,  and  consequently  it 
never  had  the  effect  of  law."  John- 
son, C,  People  ex  rel.  Purdy  v. 
Com'rs  of  Highways  of  Marlborough, 
54  N.  Y.  279. 

As  qualifying  above,  see  Eld  v. 
Gorham,  20  Conn.  8  ;  Pangborn  r. 
Young,  32  N.  J.  L.  29  ;  Speer  v.  Plank 
Road,  22  Penn.  St.  376;  Duncombe 
V.  Prindle,  12  Iowa,  1  ;  Green  v.  Wel- 
ler,  32  Miss.  650. 

In  R.  V.  Knollys,  Ld.  Raym.  10,  the 
court  declined  to  take  judicial  notice 
of  parliamentary  journals. 

^  In   Mauch  Chunk   v.  McGee,  de- 


cided in  the  supreme  court  of  Penn- 
sylvania, in  March,  1876  (Weekly 
Notes  of  Cases, Oct.  19,  1876),  Agnew, 
C.  J.,  in  delivering  the  opinion  of  the 
court,  thus  speaks:  "It  is  settled  in 
this  state  that  a  part  of  an  act  not 
within  the  subject  stated  in  the  title 
may  be  declared  to  be  unconstitu- 
tional, leaving  the  portion  within  the 
title  to  stand.  Dorsey's  Appeal,  22 
P.  F.  Smith,  192;  Allegheny  Home's 
Appeal,  2  7  P.  F.  Smith,  77  ;  Smith  v. 
McCarthy,  6  P.  F.  Smith,  3;J9;  Com'th 
V.  Green,  8  P.  F.  Smith,  234  ;  Cooley's 
Constitutional  Limitations,  178.     The 


thus   frustrate  the  legislative   action. 

"  Upon  the  whole  section  we  can- 
not, in  view  of  its  evident  purpose, 
say  it  is  not  substantially  germane  to 
the  subject  of  the  title.  It  will  nut  do 
to  defeat  useful  and  honest  legislation 
by  too  rigid  an  adherence  to  the  letter 
of  the  constitution.  As  remarked  by 
C.  J.  Gibson,  following  C.  J.  Tilgh- 
man,  a  constitution  is  not  to  be  in- 
terpreted as  articles  of  agreement  at 
common  law  ;  and  where  multitudes 
are  to  be  affected  by  the  construction 
of  an  instrument,  great  regard  should 
be  paid  to  the  spirit  and  intention. 
Monon.  Nav.  Co.  r.  Coons,  6  W.  Sc 
S.  114.  '  It  is  a  cardinal  rule,'  said 
the  late  C.  J.  Thompson,  '  that  all 
statutes  are  to  be  construed  so  as  to 
sustain  rather  than  ignore  them;  to 
give  them  operation,  if  the  language 
will  permit,  insteacl  of  treating  them 
as  meaningless,'  and,  I  may  aild,  or 
treating  them  as  invalid.  Howard's 
Api)cai,  20  P.  F.  Smitli,  3  J 4.  It  is 
not  the  purpose  or  the  duty  of  the 
court  to  catch  at  pretexts  to  avoid 
legislation,  when  it  can  l)e  fairly  rec- 
onciled with  the   constitution.     This 

267 


§  202.] 


THE  LAW   OF   EVIDENCE. 


[book  II. 


islative  rolls  and  records  for  the  purpose  of  examining  as  to 
whether  the  bill  as  passed  is  the  same  as  the  bill  certified,^  nor 
for  the  purpose  of  determining  whether  the  statute  passed  in 
conformity  with  the  rules  adopted  by  the  legislature  for  its  own 
government.^  Nor  is  extrinsic  evidence  admissible  to  show  that 
an  act  printed  in  the  official  volume  and  certified  to  by  the  proper 
officer  of  state,  varies  from  the  law  actually  passed.^ 

§  291.  The  courts  of  a  state  which  has  been  carved  out  of 
Judicial  another  state  take  judicial  notice  of  the  statutes  of  the 
notice  latter  state  prior  to  the  separation.^    On  the  same  prin- 

law  of  prior  clplc  our  courts  will  take  judicial  notice  of  the  statutes 
of  same'  of  Great  Britain  enacted  prior  to  the  separation  ;  ^  the 
country.  g^ates  Ceded  by  Spain  will  recognize  the  Spanish  law 
as  existing  prior  to  the  cession  ;  ^  and,  generally,  the  laws  of 
a  prior  will  be  judicially  noticed  by  the  courts  of  a  subsequent 
sovereign.'^ 

§  292.  By  the  Roman  law,  the  judge  is  not  bound  to  take 


has  been  the  current  of  decision  in 
this  state  in  many  cases.  Blood  v. 
Mercelliott,  3  P.  F.  Smith,  391 ;  Case 
of  Church  St.  4  P.  F.  Smith,  353; 
Com'th  V.  Green,  8  P.  F.  Smith,  226; 
Alle;:heny  Home's  Appeal,  27  P.  F. 
Smith,  77;  State  Line  v.  Juniata  P. 
R.  Co.  App.  Ibid.  429.  In  The  Com- 
monwealth V.  Green,  Justice  Shars- 
wood  remarked  that  the  intention  of 
the  constitutional  amendment  was  to 
require  that  the  real  purpose  of  a  bill 
should  not  be  disguised  or  covered  by 
the  general  words  '  and  for  other  pur- 
poses,' which  was  formerly  so  common, 
but  should  be  fairly  stated;  and  it 
must  be  a  clear  case  to  justify  a  court 
in  pronouncing  an  act,  or  any  part  of 
it,  void  on  this  ground.  So  it  was 
said  in  Allegheny  Home's  Appeal, '  If 
the  title  fairly  gives  notice  of  the  sub- 
ject of  the  act  so  as  reasonably  to  lead 
to  an  inquiry  into  the  body  of  the  bill, 
it  is  all  that  is  necessary. '  An  ex- 
ception to  this  general  rule  is  when 
the  title  tends  to  mislead,  and  to  draw 
oflf  intention  from   a   covert  purpose 

268 


contained  in  the  body  of  the  bill.  Such 
was  the  case  of  the  Union  Pass.  Rail- 
way Co.'s  Appeal  (29  Legal  Intelli- 
gencer, 1872,  p.  380).  The  case  be- 
fore us  has  no  such  features.  We 
think  the  court  below  erred  in  hold- 
ing the  second  section  of  the  act  to  be 
unconstitutional. " 

1  Pangborn  v.  Young,  32  N.  J.  L. 
29;  Coleman  v.  Dobbins,  8  Ind.  156; 
Grob  V.  Cushman,  45  Ind.  119  ;  Green 
V.  Weller,  32  Miss.  650. 

2  Coleman  v.  Dobbins,  8  Ind.  156; 
Grob  V.  Cushman,  45  Ind.  119. 

^  Annapolis  v.  Harwood,  32  Md. 
371. 

4 


41 


Delano  v.  Jopling,   1   Litt.  (Ky.) 

7. 

^  Ocean  Ins.  Co.  v.  Fields,  2  Story, 
59. 

6  U.  S.  r.  Turner,  1  How.  663; 
Fremont  v.  U.  S.  17  How.  542;  Doe 
V.  Eslava,  11  Ala.  1028  ;  Chouteau  i\ 
Pierre,  9  Mo.  3 ;  Ott  v.  Soulard,  9  Mo. 
581. 

"<  Stokes  V.  Macken,  62  Barb.  145; 
Prell  f.  McDonald,  7  Kans.  426. 


CHAP,  v.]  JUDICIAL   NOTICE.  [§  293. 

notice  of  private  statutes  granting  special  privileges  to  individ- 
uals ;  nor  of  local  customs  warranting  such  privileges.  Private 
In  such  cases  comes  up  the  question  of  fact,  whether  the  JfoTkied  by 
law  establishes  such  privileges.  This  fact  must,  by  the  *^°"'''- 
Roman  law,  be  proved  as  is  any  other  fact ;  though  when  proved, 
the  applicability  of  the  law  so  accepted  remains  witli  the  court, 
acting  on  the  whole  evidence  in  the  case.^  In  England,  by  the 
Documentary  Evidence  Act  (adopted  in  1845),  "  all  copies  of 
private  and  local  and  personal  acts  of  parliament  not  pubHc  acts, 
if  purporting  to  be  printed  by  the  queen's  printers,  and  all 
copies  of  the  journals  of  either  house  of  parliament,  &c.,  shall 
be  admitted  as  evidence  thereof  by  all  courts,  judges,  justices, 
and  others,  without  any  proof  being  given  that  such  copies  were 
so  printed."  ^  By  Anglo-American  common  law,  private  statutes 
must  be  proved  on  trial.^  As  to  what  distinguishes  private  from 
public  statutes,  however,  questions  have  arisen  which  remain  to 
be  discussed.^ 

§  293.  As  public  statutes  have  been  regarded  statutes  relative 
to  particular  public   officers;^  statutes  establishing  or 

.  .    .  ■  .  f.  .  Distinction 

defining   municipal   corporations  ; "  statutes  in  respect   between 
to  roads  in  general  ;  "^  statutes  in  respect  to  navigation    and  public 
in  general;^    statutes  regulating  the  sale  of  liquor;^ 
statutes  giving  jurisdiction  to  a  particular  court ; '°  and  statutes 
affecting  all  classes  of  persons  in  the  state. ^^     Municipal  ordi- 
nances are  private  laws  when  brought  before  the  superior  judi- 

1  Muhlenbruch,    Doct.   Pandect,    §     Mon.  68;  Bevens  v.  Baxter,  23  Ark. 
39,  notes  8,  9,  ca.  3;  AVeber,  Ileffter's     387. 

ed.  17.  s  Bretz    v.  Mayor,    G    Roberts  (X. 

2  Sec  Taylor's  Ev.  §  7.  Y.),    325;  State  v.   Jarrett,    17    Md. 
8  Leland    v.    Wilkinson,    6  Peters,     309;  State  v.  Delesdenier,  7  Tex.  76. 

317;  Soc.Prop.  Gospel  v.  Young,  2  N.         ^  Ross  v.  Reddick,  1  Seanimon,  73; 

H.  310;  PearU.  Allen,  2  Tyler  (Vt.),  Fauntleroy  v.  Hannibal,    1  Dill.    118; 

315;    Alleghany  v.  Nelson,   25  Penn.  Prell  v.  McDonald,  7  Kans.  -126. 

St.  332;  State  u.  Jarrett,  17  Md.  309;         ^  Griswold    v.    Gallop,    32     Conn. 

Legrand   v.    College,    5    Miinf.    329;  208. 

Ellis  V.   Eastman,   32  Cal.  447;    At-         »  Hammond  v.  Inloes,  4  Md.  138. 

chison  R.  R.  v.  Blackshire,  10  Kans.         "  Levy  v.  State,  6  Ind.  281. 

477.  10  Bretz  v.   Mayor,  6  Roberts   (N. 

*  See  Somerville  v.  Wimbish,  7  Grat.  Y.),  325. 
205  ;    Collier    v.   Baptist    Soc.   8    B.         "  Levy  v.  State,  6  Ind.  281. 

269 


§  294.] 


THE  LAW   OF   EVIDENCE. 


[book  II. 


ciary  of  a  state,^  but  not  when  brought  before  a  city  court.^     So 
the  laws  of  a  school  board  are  private  laws.^ 

§  294.  The  legislature  may  directly  or  by  implication  require 
that  certain  statutes  shall  be  regarded  by  the  courts  as  public* 
Much  diversity  of  opinion  exists  as  to  whether  statutes  incorpo- 
rating companies  for  banking,  railroad,  or  manufacturing  pur- 
poses, are  public  or  private  statutes.  It  has  been  sometimes  held 
that  such  statutes  are  private  statutes,  which  must  be  averred 
and  proved.^  On  the  other  hand,  it  may  be  properly  argued  that 
a  grant  of  sovereignty  is  always  a  public  act ;  interesting  as  well 
those  (the  remaining  portion  of  the  community)  whose  rights 
are  thereby  contracted,  as  those  (the  persons  receiving  the 
franchise)  whose  rights  are  thereby  enlarged.^  Charters,  how- 
ever, not  involving  any  diminution  of  rights  to  the  body  of  citi- 
zens, or  granted  by  subordinate  bodies  in  pursuance  of  general 
laws,  require  to  be  proved." 


1  Garvin  v.  Wells,  8  Iowa,  286 ;  State 
r.  Jarrett,  17  Md.  309;  Somerville  v. 
Wimbish,  7  Grat.  205 ;  Case  i'.  Mobile, 
30  Ala.  538;  Hazzard  y.  Municipality, 
7  La.  An.  495;  Mooney  v.  Kennett, 
19  Mo.  551. 

2  State  V.  Leiber,  11  Iowa,  407. 

*  Boyers  v.  Pratt,  1  Humph.  90. 

*  Baring  v.  Harmon,  13  Me.  361  ; 
Hawthorne  v.  Hoboken,  32  New  J.  L. 
172;  Cicero  Draining  Co.  v.  Craig- 
head, 28  Ind.  274;  Bowie  v.  Kansas 
City,  51  Mo.  554;  Hart  v.  R.  R.  6 
W.  Va.  336  ;  Walker  v.  Armstrong,  2 
Kans.  198. 

8  Soc.  Prop.  Gospel  v.  Young,  2  N. 
H.  310;  Pedicaris  v.  Road  Co.  29  N. 
J.  L.  367;  Bank  v.  Wollaston,  3  Harr. 
(Del.)  90;  Carrow  v.  Bridge  Co.  Phill. 
N.  C.  L.  118;  City  Council  r.  Plank 
Road,  31  Ala.  76  ;  Drake  t'.  Flewellen, 
33  Ala.  106  ;  King  y.Doolittle,  1  Head 
(Tenn.),  77. 

6  Beatty  v.  Knowler,  4  Pet.  152  ; 
Carington  Co.  v.  Shepherd,  20  How. 
227;  State  u.  McAlister,  24  Me.  139; 
Jones  V.  Fales,  4  Mass.  245 ;  Durham 
V.  Daniels,    2   Greene   (Iowa),    518  ; 

270 


Bank  of  Newbury  v.  R.  R.  9  Rich.  S. 
C.  495;  Douglass  v.  Bank,  19  Ala. 
659;  Case  v.  Mobile,  30  Ala.  538; 
Burdine  v.  Lodge  Co.  37  Ala.  478; 
Davis  V.  Bank,  31  Ga.  69  ;  State  v. 
Sherman,  42  Mo.  210;  Shaw  v.  State, 
3  Sneed  (Tenn.),  86;  People  v.  Tread- 
well,  16  Cal.  220. 

T  State  V.  Wise,  7  Ind.  645;  Dan- 
ville Co.  V.  State,  8  Blackf.  277;  Cicero 
Draining  Co.  v.  Craighead,  28  Ind. 
274. 

In  most  of  the  English  personal 
acts  it  was  customary,  prior  to  the 
year  1851,  to  insert  a  clause,  declar- 
ing that  the  act  should  be  deemed 
public,  and  should  be  judicially  no- 
ticed; and  the  effect  of  this  clause 
was  to  dispense  with  the  necessity, 
not  only  of  pleading  the  act  specially, 
but  of  producing  an  examined  copy,  or 
a  copy  printed  by  the  printer  for  the 
crown.  Woodward  v.  Cotton,  1  C,  M. 
&  R.  44,  47;  Beaumont  v.  Mountain, 
10  Bing.  404.  These  cases  explain, 
and  partially  overrule,  Brett  v.  Beales, 
M.  &  M.  421.  Since  the  commence- 
ment of  the  year  1851,  this   clause, 


CHAP,  v.] 


JUDICIAL  NOTICE. 


[§  296. 


§  295.  So  by  like  reasoning,  the  courts  will  take  judicial  no- 
tice of  the  modes  by  which  domestic  laws  are  authen-  Courts 
ticated.  Hence  an  English  court  is  supposed  to  be  ofmotkr^ 
judicially  acquainted  with  the  rules,  practice,  and  pre-  tf^,^t'^n^^°' 
rogatives  of  parliament ;  ^  an  American  court,  with  the  'a^s. 
rules,  practice,  and  prerogatives  of  the  federal  and  state  legis- 
latures to  which  it  is  subject.  So,  as  we  have  seen,^  a  court 
will  take  judicial  notice  of  the  journals  of  a  legislature  to  deter- 
mine whether  an  act  is  constitutionally  passed ;  ^  or  whether  it 
has  passed  by  reason  of  not  having  been  returned  in  proper 
time  by  the  governor.* 

§  296.  Notice  of  domestic  law  involves  notice  of  all  the  sys- 
tems of  jurisprudence  by  which  such  domestic  law  is  subsidiary 
limited  or  otherwise  affected.  Hence  a  court  is  bound  n^tlced^.  «. 
to  take  notice  of  such  subsidiary  codes  or  systems  of  3-  equity. 
law  as  may  enter  into  the  law  by  which  it  is  governed.  In  sub- 
mission to  this  principle,  judicial  notice  will  be  taken,  by  com- 


however,  has  been  omitted,  the  legis- 
lature having  enacted  that  every  act 
made  after  that  date  shall  be  deemed 
a  public  act,  and  be  judicially  no- 
ticed as  such,  unless  the  contrary 
be  expressly  declared.  The  simplest 
mode  of  proving  those  acts,  whether 
they  be  local  and  personal,  or  merely 
private,  which,  being  passed  before  the 
year  1851,  contain  no  clause  declaring 
them  to  be  public,  or  which,  being 
passed  since  that  date,  contain  an  ex- 
press clause,  declaring  them  not  to  be 
public,  is  by  producing  a  copy,  which, 
if  it  purports  to  be  printed  by  the 
queen's  printer,  need  not  be  proved 
to  be  so ;  or  the  act  may  be  proved  by 
means  of  an  examined  copy,  shown 
on  oath  to  have  been  compared  with 
the  parliament  roll.  B.  N.  P.  225. 
Where  the  acts  have  not  been  printed 
by  the  printers  for  the  crown,  as  is 
sometimes  the  case  with  respect  to 
acts  for  naturalizing  aliens,  for  dis- 
solving marriages,  for  inclosing  lands, 
and  for  other  purposes  of  a  strictly 


personal  character,  an  examined  copy, 
or  a  certified  transcript  into  chancery, 
if  there  be  one,  furnishes  the  regular 
proof.  Roos  Barony,  IMin.  Ev.  145, 
cited  Hubb.  Ev.  of  Sue.  613.  Tay- 
lor's Ev.  §  13C8. 

1  Stockdale  v.  Hansard,  7  C.  &  P. 
731 ;  9  A.  &  E.  1  ;  2  P.  &  D.  1 ;  Sims 
V.  Marryatt,  17  Q.  B.  392;  Cassidy  v. 
Stewart,  2  M.  &  Gr.  437;  Sheriff  of 
Middlesex,  case  of,  11  A.  &  E.  273. 
See  supra,  §  290. 

2  Supra,  §  290. 

«  Gardner  v.  Collector,  6  Wall.  499; 
Fordyce  v.  Godman,  20  Oh.  (N.  S.) 
1;  Turley  v.  Logan,  17  111.  151;  Pres- 
cott  V.  Canal,  19  111.  324;  Albertson 
V.  Robeson,  1  Dall.  9;  Coleman  v. 
Dobbins,  8  Ind.  15G;  and  see,  as  er- 
roneously holding  that  the  courts  will 
not  go  behind  the  certificate,  Louisi- 
ana I'.  Richoux,  23  La.  An.  743.  See 
fully  oases  cited  supra,  §  290. 

•»  Wabash  R.  K.  v.  Hughes,  38  III. 
176.     See  fully  supra,  §  290. 

271 


§  299.]  THE   LAW   OF   EVIDENCE.  [BOOK  11. 

moil  law  courts,  of  equity  practice,  when  this  is  distinct  from 
common  law.^ 

§  297.  Notice,  on  the  same  reasoning,  will  be  taken  of  the  arti- 
So  of  mili-  c^®^  of  war  binding  the  forces  employed  by  the  home 
tary  law.  authority .^  This,  however,  is  not  to  be  so  construed  as 
to  extend  such  notice  to  orders  issued  by  a  military  commander 
during  a  civil  war ;  ^  though  the  fact  that  the  orders  of  such 
commander  are  authoritative  will  be  judicially  noticed.* 

§  298.  So  the  courts  will  take  judicial  notice  of  the  law  mer- 
So  of  the  chant,  so  far  as  the  same  is  a  general  custom,  or  is 
chanT and  P^^'*'  of  private  international  law.'^  "  Those  customs 
maritime,  ■which  have  been  universally  and  notoriously  prevalent 
amongst  merchants,  and  have  been  found  by  experience  to  be  of 
public  use,  have  been  adopted  as  part  of  it "  (the  law  merchant), 
"  upon  a  principle  of  convenience,  and  for  the  benefit  of  trade 
and  commerce  ;  and  when  so  adopted  it  is  unnecessary  to  plead 
and  prove  them.  They  are  binding  on  all  without  proof.  Ac- 
cordingly we  find  that  usages  affecting  bills  of  exchange  and  bills 
of  lading  are  taken  notice  of  judicially."^  It  is  accordingly 
held  that  judicial  notice  will  be  taken  of  the  general  lien  of 
bankers.'^  Judicial  notice,  also,  will  be  taken  of  the  rules  of 
maritime  law,  so  far  as  recognized  by  maritime  nations.^ 
Ecciesiasti-  §  299.  So  the  courts  will  take  notice  of  the  ecclesi- 
Christln-  astical  law  of  Christendom,  for  the  purpose  of  deter- 
dom.  mining  how  far  it  makes  part  of  the  common  law.^ 

1  Maberley  v.  Robbins,  5  Taunt.  Fales,  4  Mass.  245  ;  Jewell  v.  Center, 
625;  Elliott  v.  Evans,  3  B.  &  P.  181  ;  25  Ala.  498;  Bradford  v.  Cooper,  1 
Neeves  v.  Burrage,  14  Q.  B.  504;  La.  An.  325;  Goldsmith  v.  Sawyer, 
Westoby  v.  Day,  2  E.  &  B.  624.  46  Cal.  209.     See  infra,  §  331. 

2  Taylor's  Ev.  §  5  ;  Bradley  v.  At-  ^  Denman,  C.  J.,  Barnett  v.  Bran- 
thur,  4  B.  &  C.  304.  dao,  6  M.  &  G.  630. 

8  Burke  v.  Miltenberger,  19  Wall.  ''  Ibid.;  aff.  on  this  point  in  House 

519.     See  infra,  §  638.  of  Lords,  Brandao  v.  Barnett,  12  CI. 

*  Gates   V,  Johnson    Co.    36    Tex.  &  F.  787.     See,  as  to  noticing  custom 

144.  of  conveyances,  Rowe  v.  Grendal,  Ry. 

6  Whart.  on   Ag.  §   678;    Edie  v.  &  Moo.  398;  3  Sugd.  V.  &  P.  28;  for 

East  Ind.  Co.  2  Burr.  1226;  Young  v.  other  authorities,  infra,  §  331. 

Cole,  3  Bing.  N.  C.    724;    Sutton  v.  «  Chandler  u.  Grieves,  2  H.  BI.  606, 

Tatham,  10  Ad.  &  El.  27;  Bayliffe  v.  n.      See  supra,  §  285;  infra,  §  331. 

Butterworth,  1  Ex.  445;  Bank  of  Met.  »  Whart.  Confl.  of  Laws.  §  171,  and 

V.  Bank,  1  Howard,  234 ;   Schuchardt  cases   there   cited;    Sims  r.  Marryatt, 

V.  Allen,  1  Wall.  U.  S.  359;  Jones  v.  17  Q.  B.  292.     And  see  supra,  §  284. 

272 


v.] 


JUDICIAL   NOTICE. 


[§  301. 


§  300.  A  judge  is  bound  to  know  the  laws  of  his  own  state, 
but  not  those  of  a  foreign  country  ;  nor  can  he,  without   ^     . 

.        .  Foreign 

proof,  ordinarily  accept  as  authoritative  the  laws  of  laws  must 
such  foreign  country,  so  far  as  they  differ  from  his  own.^ 
In  England,  even  colonial  laws  and  the  laws  of  Scothmd  must 
be  proved  as  facts.^  Thus,  when  an  action  is  brouglit  on  a  con- 
tract on  its  face  valid,  and  the  defence  claims  that  the  contract 
was  avoided  by  a  statute  which  was  part  of  the  lex  loci  con- 
tractus^ the  contract  having  been  made  in  another  state,  the 
judex  fori  will  require  such  statute  to  be  proved.^  But  in  re- 
spect to  those  matters  in  which  the  states,  under  the  federal  Con- 
stitution, are  not  foreign  to  each  other  (e.  g.  under  the  provision 
as  to  the  reciprocal  credit  to  be  given  to  judgments),  the  courts 
of  one  state  will  take  notice  of  another's  statutes.* 

§  301.  Where  the  seat  of  an  obligation  is  in  another  state  (e. 
g.  in  a  state  where  prevails  the  Roman  common  law  as  distin- 
guished from  the  English  common  law,  or  the  converse),  the 
judex  fori  will  be  bound  to  accept  such  foreign  law  if  proved.^ 


1  Weber,  Heffter's  ed.  11;  Borst, 
Beweislast,  2;  Di  Sora  v.  Phillips,  10 
II.  L.  Ca.  624;  Bremer  v.  Freeman,  10 
Moore  P.  C.  306;  Hyde  v.  Hyde,  1 
Prob.  &  Div.  133  ;  Church  v.  Hubbart, 
2  Cranch,  187  ;  Strother  v.  Lucas,  6 
Peters,  763;  Ennis  v.  Smith,  14  How. 
400;  Dainese  v.  Hale,  91  U.  S.  (1 
Otto),  13 ;  Owen  v.  Boyle,  15  Me. 
147  ;  Woodrow  v.  O'Conner,  28  Vt. 
7  76  ;  Frith  v.  Sprague,  14  Mass.  455  ; 
Holman  v.  King,  7  Mete.  384;  Kline 
V.  Baker,  99  Mass.  254;  Dyer  v.  Smith, 
12  Conn.  384;  Ludlow  v.  Van  Rensse- 
laer, 1  Johns.  11.  94;  Champion  v. 
Kille,  15  N.  J.  Eq.  476  ;  Baptiste  v. 
DeVolunbrun,  5  liar.  &  J.  86  ;  Bait. 
&  O.  R.  R.  V.  Glejin,  28  Md.  287  ; 
Ingraham  v.  Hart,  1 1  Oh.  255 ;  People 
V.  Lambert,  5  Mich.  349 ;  Davis  v. 
Rogers,  14  Ind.  424  ;  Bean  v.  Briggs, 
4  Iowa,  464  ;  Chumasero  v.  Gilbert, 
24  111.  293  ;  Moore  v.  Gwynn,  5  Ired. 
187;  State  v.  Jackson,  2  Dev.  563; 
Hooper  v.  Moore,  5  Jones  (N.  C), 
130  ;  Symc  v.  Stewart,  17  La.  An.  73; 

VOL.   I.  18 


Hemphill  v.  Bk.  6  Sm.  &  M.  44; 
Chouteau  v.  Pierre,  9  Mo.  3  ;  Shed  v. 
Augustine,  14  Kans.  282;  Cooke  v. 
Crawford,  1  Te.x.  9.  A  party  who 
desires  to  use  a  foreign  law  by  way  of 
defence  must  ordinarily  plead  it.  Dai- 
nese V.  Hale,  91  U.  S.  (1  Otto)  13. 

2  Dalrymple  v.  Dalryniple,  2  Hagg. 
Con.  54;  Prowse  v.  Shipping  Co.  13 
Mood.  P.  C.  R.  484  ;  Breman's  case, 
10  Q.  B.  498;  Taylor's  Ev.  §§  5,  40, 
1280. 

8  See  Whart.  Cond.  of  Laws,  §  771 ; 
Jones  V.  Palmer,  1  Dougl.  Mich.  379  ; 
Martin  v.  Martin,  1  Sm.  &  M.  176. 

*  State  V.  Hinchman,  27  Penn.  St. 
4  79.  See  Carpenter  v.  Dexter,  8  Wall. 
513.     Supra,  §  96. 

6  See  cases  in  Whart.  Conll.  of 
Laws,  §  771  et  seq. ;  and  see  Copley 
V.  Sanford,  2  La.  An.  335  ;  Kling  v. 
Sejour,  4  La.  An.  129  ;  Young  v. 
Temi)leton,  4  La.  An.  254  ;  Nimmo 
V.  Davis,  7  Te.x.  26  ;  but  see  Brad- 
shaw  V.  May  field,  18  Tc.\.  21. 

273 


§  303.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

If  it  is  contrary  to  the  principles  of  natural  justice,  or  if  its 
recognition  would  militate  against  the  policy  of  the  state  of 
which  he  is  an  officer,  he  may  refuse  to  accept  it  as  interpreta- 
tive of  a  contract  on  which  he  has  to  act.  But  whatever  it  may 
be,  it  must  be  proved  to  him,  as  would  be  any  other  fact  in  issue, 
to  be  the  law  of  the  foreign  state  from  which  it  proceeds.  And 
when  proved,  it  must  be  accepted  as  would  any  other  fact  duly 
put  in  evidence. 

§  302.  It  is  sometimes  said  that  foreign  laws  must  be  proved 

by  parol.  It  is  clear  that  of  such  laws  the  judex  fori^ 
must  be        as  we  have  already  seen,  will  not  take  judicial  notice. 

But  it  is  not  true  that  to  the  proof  of  foreign  laws,  the 
testimony  of  experts  is  always  essential.  Foreign  statutes  may 
be  proved  by  exemplifications  under  the  great  seal  of  the  sover- 
eign ;  and  by  statute,  if  not  by  common  law,  the  pamphlet  laws 
issued  by  one  state  of  the  American  Union  are  ordinarily  re- 
ceived in  evidence  in  the  courts  of  the  other  states.^  But  be 
this  as  it  may,  it  forms  no  exception  to  the  general  rule  that  of  a 
foreign  law  (whether  statute  or  otherwise)  the  judex  fori  takes 
no  notice  until  it  is  proved.^  And  when  a  foreign  legislative  act 
is  submitted  to  the  interpretation  of  the  court,  the  act  must  be 
itself  produced.^ 

§  303.  Some  conflict  of  opinion,  however,  exists  as  to  whether 
foreign  laws  are  to  be  proved  as  facts,  to  the  jury.  Judge  Story 
is  decided  in  declaring  that  the  issue  is  for  the  court.  "  The 
court  are  to  decide  what  is  the  proper  evidence  of  the  laws  of  a 
foreign  country  ;  and,  where  evidence  is  given  of  those  laws,  the 

1  See  infra,  §§  309,  310.  446  ;  Ingraham  v.  Hart,  11  Oh.  255  ; 

2  Bremer  v.  Freeman,  10  Moore  P.  Trasher  v.  Everhart,  3  Gill  &  J.  234; 
C.  306  ;  Di  Sora  v.  Phillips,  10  H.  L.  Merritt  v.  Merritt,  20  111.  65  ;  Mc- 
Cas.  624;  Hyde  v.  Hyde,  L.  R.  1  P.  Deed  v.  McDeed,  6  7  111.  545;  Char- 
ge D.  133;  Church  v.  Hubbart,  2  lotte  r.  Chouteau,  25  Mo.  465;  Moore 
Cranch,  187  ;  Ennis  v.  Smith,  14  v.  Gwynn,  5  Ired.  187  ;  McXeill  v.  Ar- 
How.  400  ;  Owen  v.  Boyle,  15  Me.  nold,  17  Ark.  154;  Martin  v.  Payne, 
147;  Holman  v.  King,  7  Mete.   384;  11  Tex.  292. 

Cragin    v.   Lamkin,    7    Allen,    396;  3  gmjth  u.  Potter,  27  Vt.  304 ;  Hoes 

Knapp  V.  Abell,  10  Allen,  485  ;  Kline  v.  Van  Alstyne,  20   111.  201 ;  M'Deed 

V.    Baker,    99    Mass.    254;    Dyer    v.  v.  M'Deed,  67  111.  545;    Leonard  v. 

Smith,  12  Conn.  384;  Diez,  in  re,  56  Peeples,    30    Geo.    61;    Kermott    v. 

Barb.  591;  Leavenworth  v.  Brockway,  Ayer,  11  ISIich.  181  ;  Tryon  u.  Ran- 

2  Hill,  201;  Robert's  Will,  8  Paige,  kin,  9  Tex.  595. 
274 


JUDICIAL   NOTICE. 


[§  306. 


court  are  to  judge  of  their  applicability,  when  proved,  to  the  case 
in  hand."  ^  The  same  view  is  maintained  by  the  supreme 
court  of  New  Hampshire.^  But  the  rule  that  the  fact  of  a 
foreign  law  must  be  proved  to  the  jury  like  any  other  fact,  while 
questions  of  competency  and  of  construction  are  for  the  court,  is 
that  which  now  generally  obtains.^ 

§  304.  In  the  proof  of  foreign  laws,  the  best  attainable  evi- 
dence will  be  required  ;  but  no  species  of  verification,  incompat- 
ible with  the  laws  and  usages  of  such  foreign  country,  will  be 
exacted.* 

§  305.  Parol  proof,  therefore  (except  in  those  cases  in  which 
by  international  comity  or  otherwise,  the  statutes  of  Experts 
one  state  ai'e  treated  in  another  state  as  self  proving),  fo" ti*^g^'^ 
being  the  agency  by  which  foreign  law  is  to  be  proved,  purpose, 
it  is  usual  to  call  experts  by  whom  such  j^roof  is  to  be  made.* 
A  mere  certificate  of  a  foreign  expert,  no  matter  how  authorita- 
tive his  office,  will  not  be  enough.  The  witness  must  be  ex- 
amined under  oath.*" 

§  306.  But  what  is  necessary  to  constitute  an  expert  in  this 


1  Confl.  of  Laws,  §  638  ;  De  Sobry 
V.  De  Laistre,  2  Har.  &  Johns.  219, 
and  Traslier  v.  Everliart,  3  Gill  & 
Jolins.  234,  &c.,  which  are  cited  as 
authorities,  do  not  sustain,  in  whole, 
the  position  of  the  text. 

2  Hall  V.  Costello,  48  N.  II.  179. 
See,  also,  Munroe  v.  Douglass,  5  N. 
Y.  (1  Selden)  447. 

^  See  Judge  Redfield's  comments 
in  the  Gth  edition  of  Story's  Confl.  'of 
Laws,  §  G38  a.  Diez,  in  re,  56  Barb. 
(N.  Y.)  591  ;  Leavenworth  v.  Brock- 
way,  2  Hill  (N.  Y.),  201  ;  Robinson  y. 
Dauchy,  3  Barb.  (N.  Y.)  20;  Kline  v. 
Baker,  99  Mass.  254  ;  Dyer  v.  Smith, 
12  Conn.  384;  Ingraham  v.  Hart,  11 
Ohio,  255. 

*  Whart.  Confl.  of  L.  §  773;  Story 
Confl.  of  L.  §  (j39,  citing  Church  v. 
Hubbart,  2  Cranch,  187  ;  Isabella  i'. 
Pecot,  2  La.  An.  11.  391.  On  the 
question  of  the  existence  of  a  foreign 
law  it  is  held  competent  to  read  to  the 


jury  from  printed  books  of  decisions 
and  history.  Charlotte  v.  Chouteau, 
33  Mo.  194.  Whether  a  court  can 
take  judicial  notice  of  a  foreign  sys- 
tem of  jurisprudence  will  be  hereafter 
discussed.      Infra,  §  313. 

^  Hyde  v.  Hyde,  L.  R.,  1  P.  &  D. 
133  ;  Brown  v.  U.  S.  G  Ct.  of  Claims, 
171  ;  Dauphin  v.  U.  S.  G  Ct.  of  CI. 
221 ;  Church  v.  Hubbart,  2  Cranch, 
187;  Stein  v.  Bowman,  13  Pet.  209  ; 
Pickard  v.  Bailey,  26  N.  H.  152; 
Barrows  v.  Downs,  9  R.  I.  44  7  ;  Dyer 
V.  Smith,  12  Conn.  284  ;  Gardner  v. 
Lewis,  7  Gill,  377;  Consolidated  Real 
Est.  Co.  V.  Cashow,  41  Md.  59;  Smith 
V.  Bartram,  1 1  Ohio  St.  G90 ;  Grca- 
sons  V.  Davis,  9  Iowa,  219;  Crafts  v. 
Clark,  38  Iowa,  237;  Walker  v. 
Forbes,  31  Ala.  9  ;  People  v.  Lam- 
bert, 5  Mich.  349. 

«  Church  I'.  Hubbart,  2  Cranch, 
187  ;  Lnnis  v.  Smith,  14  llowaril. 
400.    Sec  Wilson  i:  Carson,  12  Md.  54. 

275 


§  307.]  THE   LAW   OF   EVIDENCE.  [BOOK  H. 

sense  ?  In  England  it  was  once  held  that  an  expert  in  law  need 
not  be  a  practising  lawyer  of  the  country  whose  laws  were  to  be 
proved ;  and  it  was  considered  sufficient  if  he  should  occupy  a 
position  which  would  familiarize  him  with  the  law  as  to  which 
he  was  to  testify.  In  conformity  with  this  view,  an  hotel-keeper 
in  London,  a  native  of  Belgium,  who  stated  that  he  had  formerly 
carried  on  the  business  of  a  merchant  or  commissioner  of  stocks 
in  Brussels,  was  permitted  to  prove  the  law  of  Belgium  on  the 
subject  of  presentment  of  a  promissory  note,  made  in  that  coun- 
try, payable  at  a  particular  place.^  So  a  Jewess  has  been  per- 
mitted to  give  parol  evidence  that  her  own  divorce  in  a  foreign 
country  was  in  conformity  with  the  laws  of  her  church  as  sanc- 
tioned in  that  country .^  In  1875,  however,  when  in  the  court 
of  probate  and  divorce  the  object  was  to  prove  the  Italian  law 
of  succession,  an  affidavit  of  a  "  certified  special  pleader,"  who 
stated  that  he  was  "  familiar  with  Italian  law,"  was  produced  ; 
Sir  J.  Hannen  rejected  an  application  for  administration  with 
the  will  annexed,  based  on  this  affidavit,  and  held  that  "  the 
law  of  a  foreign  country  cannot  be  proved  even  by  a  jurisconsult, 
if  his  knowledge  of  it  be  derived  solely  from  his  having  studied 
it  in  a  foreign  university."  ^ 

§  307.  In  the  United  States  a  more  liberal  practice  obtains. 
A  layman  has  been  permitted  to  prove  Chinese  commercial  law ;  * 
and  officiating  clergymen  the  law  of  marriage  under  which  they 
officiated.^  So  far  as  concerns  the  canon  law,  this  would  not 
be  disputed  in  England,  where  it  has  been  held  that  a  Roman 
Catholic  bishop,  holding  the  office  of  coadjutor  to  a  vicar-apos- 
tolic in  England,  is,  by  virtue  of  his  office,  a  person  so  skilled 

1  Vander  Donckt  r.  Thellusson,  8  CI.  &  F.  85, 114-117;  Baron  de  Bode's 
C.  B.  812.  case,  8  Q.  B.  208,  250-6  7;  Lord  Nel- 

2  Ganer  i\  Lanesborougla,  Peake,  son  u.  Lord  Bridport,  8  Bl.  527;  Perth 
18,  explained,  however,  by  Lord  Lynd-  Peerage  case,  2  H.  L.  Cas.  865,873; 
hurst  in  11  Clar.  &  Fin.  124,  to  rule  Duchess  di  Sora  v.  Phillips,  33  L.  J. 
only  that  a  witness  familiar  with  a  Ch.  129,  quoted  in  The  Stearine, 
foreign  custom  could  prove  such  cus-  &c.,  Company  v.  Heintzmann,  17  C. 
torn.  B.  N.  S.  60,  overruling  R.  v.  Dent,  1 

8  Bonalli's  case,  L.  R.  1  P.  D.  69 ;  C.  &  Kir.  97. 
following   Bristow    v.     Sequeville,     5         *  Wilcocks  r.  Phillips,  1  Wall.  Jr.  47. 
Ex.  275;  3   C.  &  K.   64.     See,  also,         ^  State  t;.  Abbey,  29  Vt.  60;  Amer. 

Dalrymple    v.    Dalrymple,    2    Hagg.  Life  Ins.  Co.  i\   Rosenagle,  77  Penn. 

Cons.  R.  54;  Sussex  Peerage  case,  11  St.  507  ;  Bird  v.  Com.  21  Grat.  800. 

276 


CHAP,  v.] 


JUDICIAL  NOTICE. 


[§  308. 


in   the   Roman  Catholic  law  of   marriage,  as   to  be  an  expert 
capable  of  proving  that  law.^ 

§  308.  An  expert,  thus  called,  is  competent  to  prove  that  a  book 
offered  in  evidence  contains  the  statutes  of  the  foreign    Experts 
state  whose  law  is  in   controversy .^     The  expert  may    bodies IndT 
not  only  verify  the  statutes,  but  state  the  construction    authorities, 
given  to  them,  refreshing  his  memory  by  references.^     To  admit 


1  Sussex  Peerage,  11  CI.  &  Fin.  84, 
In  Am.   Ins.  Co.  v.  Rosenagle,  ut 

supra,  "Woodward,  J.,  said  :  "  The 
witness  said  he  -was  the  Catholic  dean 
and  parson  at  Odenheim  ;  that  '  these 
records  have  ah-eady  existed  many 
centuries,  and  each  parson  receives 
the  church  books  from  his  predeces- 
sor, which  altogether  form  one  con- 
tinued series;'  and  that  he  was  the 
proper  keeper  and  custodian  of  the 
records.  .  The  law  of  a  foreign  coun- 
try on  a  given  subject  may  be  proved 
by  any  person,  who,  though  not  a 
lawyer,  or  not  having  filled  any  public 
office,  is  or  has  been  in  a  position  to 
render  it  probable  that  he  would  make 
himself  acquainted  with  it.  Vander 
Donckt  V.  Thellusson,  8  C.  B.  812. 
Here  the  witness  was  the  custodian  of 
records  which  had  existed  for  centu- 
ries, and  which  he  swore  had  been  kept 
in  accordance  with  the  laws  in  force 
when  the  entries  were  made.  It  was 
his  duty  to  know,  and  he  testified  that 
he  did  know,  the  law  relating  to  the 
records  in  his  charge.  His  knowl- 
edge was  just  that  which  the  respon- 
sible head  of  a  public  office  would  be 
assumed  to  have  of  the  law  which  had 
controlled  the  past  operations  of  his 
department  ;  just  that  which  would 
be  imputed  to  a  surveyor  general  in 
the  year  1875,  of  the  law  that  gov- 
erned the  land  office  in  the  year  1800. 
His  position,  and  the  facts  to  wliich 
he  testified,  ma<le  the  rejected  evi- 
dence coinpetcnt." 

2  Dalrymple  v.  Dalrymple,  2  Con- 


sist. R.  81  ;  Barrows  v.  Downs,  9  R. 
I.  447  ;  Brush  v.  Wilkins,  4  Johns, 
Ch.  506  ;  Jones  v.  Maffet,  5  Serg.  & 
R.  523;  People  v.  Calder,  30  Mich.  87, 
8  Ibid.  "  In  the  Sussex  Peerage 
Case,  A.  D.  1844,  11  Clark  &  Fin- 
nelly,  85,  Dr.  Wiseman  was  called  as 
a  witness  to  prove  the  laws  of  mar- 
riage at  Rome,  and  referred  to  a  book 
containing  the  decrees  of  the  Council 
of  Trent,  as  regulating  them.  The 
judges  of  the  committee  of  the  house 
of  lords  expressed  their  opinions  sev- 
erally. Lord  Brougham :  '  The  wit- 
ness may  refresh  his  recollection  by 
referring  to  authorities,'  &c.  Lord 
Lyndhurst,  Lord  Cliancellor:  '  The 
witness  may  thus  correct  and  confirm 
his  recollection  of  the  law,  though  he 
is  the  person  'to  tell  us  what  it  is,' 
Lord  Brougham  agreed  with  the  Lord 
Chancellor  :  '  The  witness  may  refer 
to  the  sources  of  his  knowledge  ;  but 
the  proper  mode  of  proving  a  law  is 
not  by  showing  a  book  :  the  house  re- 
quires tlie  assistance  of  a  lawyer  who 
knows  how  to  interpret  it.'  Lord 
Chief  Justice  Denman  :  '  There  docs 
not  appear  to  be  in  fact  any  real  dif- 
ference of  opinion  ;  there  is  no  ques- 
tion raised  here  as  to  any  exclusive 
mode  of  getting  at  this  evidence,  for 
we  have  both  materials  of  knowledge 
offered  to  us.  We  have  the  witness, 
and  he  states  the  law,  wliich  he  says 
is  correctly  laid  down  in  these  books. 
The  books  are  produced,  but  the  wit- 
ness describes  them  as  authdritntivc, 
and  explains  them  by  his  knowledge 

277 


§  308.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

a  statute  it  is  not  necessary  that  there  should  be  proof  tliat  it 


of  the  actual  practice  o£  the  law.  A 
skilful  and  scientific  man  must  state 
what  the  law  is,  but  may  refer  to 
books  and  statutes  to  assist  him  in 
doing  so.  This  was  decided  after  full 
argument  on  Friday  last  (June  20),  in 
.  the  court  of  queen's  bench  (Baron  de 
Bode's  case).  There  was  a  difference 
of  opinion,  but  the  majority  of  the 
judges  clearly  held,  on  an  examina- 
tion of  all  the  cases,  and  after  full 
discussion,  that  proof  of  the  law  itself 
in  a  case  of  foreign  law,  could  not  be 
taken  from  the  book  of  the  law,  but 
from  the  witness  who  described  the 
law.  If  the  witness  says:  "I  know 
the  law,  and  this  book  truly  states  the 
law,"  then  you  have  the  authority  of 
the  witness  and  of  the  book.  You 
may  have  to  open  the  question  on  the 
knowledge  or  means  of  knowledge  of 
the  witness,  and  other  witnesses  may 
give  a  different  interpretation  to  the 
same  matter,  in  which  case  you  must 
decide  as  well  as  you  can  on  the  con- 
flicting testimony  ;  but  you  must  take 
the  evidence  from  the  witness.' 

"  Lord  Campbell  concurred,  saying: 
'  The  foreign  law  is  matter  of  fact. 
.  .  You  ask  the  witness  what 
the  law  is  ;  he  may,  from  his  recollec- 
tion, or  on  pi'oducing  and  referring 
to  books,  say  what  it  is,'  &c.  Lord 
Langdale,  master  of  the  rolls :  '  For- 
eign law  is  matter  of  fact.  A  witness 
more  or  less  skilled  in  it  is  called  to 
depose  to  it.  He  may  state  it  from 
his  own  knowledge,  or  refer  to  text- 
books or  books  of  decisions.' 

"  Dr.  Wiseman  went  on  to  testify 
that,  by  virtue  of  his  office  as  Roman 
Catholic  bishop  and  coadjutor  to  the 
vicar-apostolic  in  England,  '  he  had 
jurisdiction  of  the  subject  of  Catholic 
marriages.' 

"  The  Lord  Chancellor  :  '  He  comes 
within   the   description   of    a  person 

278 


perilus  virtute  officii'  Lord  Langdale: 
'  His  evidence  is  in  the  nature  of  that 
of  a  judge.' 

"  It  was  admitted. 

"  Mr.  Westlake  (Conflict  of  Laws, 
§  414,  note)  seems  to  think  that  Lord 
Denman  has  overstated  the  result  of 
the  decision  in  the  Baron  de  Bode's 
case.  It  might  well  be  supposed  that 
the  chief  justice  ought  to  know  what 
his  own  court  of  king's  bench  had  de- 
cided, and  on  looking  at  the  case  in 
8  Adolphus  &  Ellis,  N.  S.  208,  we  find 
his  statement  supported.  A  witness 
was  offered,  who  testified  that  the  feu- 
dal system  in  Alsace  had  been  abol- 
ished by  a  decree  of  the  French  Na- 
tional Assembly  of  1789.  The  decree 
itself  was  not  produced.  Lord  Den- 
man, chief  justice,  said  that  the  rule 
admitting  testimony  of  persons  of 
science  applied  not  only  to  unwritten 
but  to  written  law.  The  question  was 
not  only  the  contents  but  the  state 
and  effect  of  the  written  law.  The 
mere  contents  of  the  law  might  often 
mislead.  He  then  criticised  the  deci- 
sions in  3  Esp.  58;  3  Camp.  166  ;  4 
Camp.  155,  and  refers  to  Lacon  v. 
Higgins,  3  Starkie,  178  ;  Picton's 
case,  30  State  Trials,  225,  491  ;  Mid- 
dleton  V.  Janverin,  2  Hagg.  Cons. 
437,442,  and  says  he  'can  perceive 
no  distinction  between  proof  from  a 
copy  of  the  law,  as  we  find  it  ten- 
dered and  received,  and  the  proof 
now  tendered.'  Justices  Coleridge 
and  Williams  concurred,  and  gave 
their  reasons  at  length.  The  written 
law  itself,  they  say,  would  be  of  little 
use,  compared  with  the  opinion  of  a 
scientific  person  who  could  give  the 
exact  state  of  the  law  and  its  con- 
struction. Justice  Patterson  dis- 
sented, and  held  it  necessary  to  pro- 
duce the  written  law.  The  reasons 
given  for  his  dissent  go  far  to  show 
the  effect  of  the  decision. 


CHAP,  v.] 


JUDICIAL   NOTICE. 


[§  308. 


has  not  been  repealed  or  modified  down  to  the  period  when  it  is 
offered  in  evidence.^ 


"  It  is  thus  decided  that  an  expert 
may  state  the  written  law  without  pro- 
ducing it.  Lord  Denman  says  that 
they  decided  that  the  proof  of  the  law 
was  to  be  not  from  the  book,  but  from 
the  witness;  and  the  reasons  given 
bear  out  his  statement. 

"  And  it  is  but  one  step  farther  to 
decide,  as  was  held  in  the  Sussex 
Peerage  case,  that  the  witness  may 
refer  to  the  book  to  refresh  his  mem- 
ory, &c. 

"  It  is  true  that  in  the  Sussex  Peer- 
age case  the  judges  were  not  sitting 
as  a  court ;  but  they  were  acting  as  a 
committee  of  privilege,  to  whom  it 
had  been  referred  by  the  house  of 
lords  to  inquire  into  the  validity  of  a 
foreign  marriage,  and  the  house  of 
lords  confirmed  their  decision. 

"And  in  the  last  edition  of  Phil- 
lipps  on  Evidence  (2428,  ch.  5,  §  4), 
the  law  is  stated  substantially  in  the 
words  of  that  decision.  See,  also. 
Lord  Nelson  v.  Bridport,  8  Beavan, 
527,  535,  537,  539,  &c. 

"  Besides,  in  the  case  of  the  Span- 
ish colonies,  it  is  difficult  to  ascertain 
what  their  law  is  without  the  aid  of 
an  expert.  Their  law  is  composed, 
partly  of  the  various  codes  of  Spain, 
and  partly  of  the  various  decrees,  &c., 
contained  in  the  Recopilacion  de  In- 
dias,  and  the  various 'decrees  of  later 
date.  Some  laws  are  in  force  in  Spain 
only  ;  some  in  the  colonies  only  ;  and 
some  arc  general.  Schmidt's  Civil 
Law  of  Spain  and  Mexico.  Histor- 
ical Summary. 

"In  the  matter  of  Robert's  Will, 
A.  D.  1849,  8  Paige,  44G,  Chancellor 
Kent  relied  on  the  evidence  of  an  ex- 
pert in  relation  to  the  laws  of  Cuba, 
for  the  reasons  we  have  stated  above. 

*'  In  the  case  of  Vandcr  Donckt  i'. 
ThcUusson    (8   Manning,  Granger  & 


Scott,  812,  A.  D.  1849),  the  courts 
after  argument,  admitted  a  person  not 
a  lawyer  to  prove  the  law  of  Belgium 
as  to  bills  of  exchange.  In  this  case 
it  is  stated  in  the  note,  that  the  old 
French  Code  of  Commerce  (without 
the  subsequent  French  modifications) 
was  in  force  in  Belgium."  Potter,  J., 
in  Barrows  v.  Downs,  ut  supra. 

1  "  By  the  positive  law  of  this  state, 
printed  copies  of  the  statutes  and  re- 
solves of  any  of  the  United  States,  if 
purporting  to  be  published  under  the 
authority  of  the  proper  government, 
are  required  to  be  admitted  in  all  pro- 
ceedings in  our  courts  as  prima  facie 
evidence.  §  5935,  Comp.  L.  The 
same  rule  is  laid  down  in  New  Hamp- 
shire without  the  aid  of  statute.  Em- 
ery V.  Berry,  8  Fos.  4  73. 

"In  the  present  case,  Mr.  Romeyn, 
an  attorney  and  counsellor  of  this 
court,  produced  upon  the  stand  a 
printed  volume,  purporting  to  be  one 
of  the  Revised  Statutes  of  New  York, 
and  dated  in  1852,  and  he  identified 
it  as  such. 

"  The  book  purported  to  contain 
the  statutory  regulations  of  the  state 
on  the  solemnization  of  marriage,  as 
such  regulations  existed  in  1S.")2,  and 
the  counsel  for  the  defendant  objected 
to  the  introduction  of  the  volume  on 
the  ground  that  it  was  not  compe- 
tent, and  for  the  reason  that  Mr. 
Romeyn  was  not  shown  to  have  any 
special  knowledge  on  the  subject. 

"  The  import  of  this  objection  is 
not  very  clear,  but  we  shall  notice  the 
frrounds  of  it,  as  we  umlcrstand  thom. 

"  It  is  said  tliat  tliis  pulilication  of 
1852  was  not  proper  to  i<how  what 
the  law  was  in   1869. 

"  The  witness,  Mr.  Romeyn.  before 
the  book  was  admitted,  was  interro- 
gated at  considerable  length  as  to  his 

279 


§  309.] 


THE   LAW    OF   EVIDENCE. 


[book  II. 


Foreign 
statutes 
may  be 
proved  l)y 
exeniplili- 
catious. 


§  309.  The  usual  mode  of  authenticating  foreign  statutes  is 
"  by  oath,  or  by  an  exemplification  of  a  copy  under  the 
great  seal  of  a  state,  or  by  a  copy,  proved  to  be  a  true 
copy  by  a  witness  who  has  examined  and  compared  it 
with  the  original,  or  by  a  certificate  of  an  officer,  prop- 
erly authorized  by  law  to  give  the  copy  ;  which  certifi- 
cate must  be  duly  proved.  But  such  modes  of  proof  as  have 
been  mentioned  are  not  to  be  considered  exclusive  of  others, 
especially  of  codes  of  laws,  and  accepted  histories  of  the  laiv  of  a 
country'''  ^  By  a  convention  between  the  United  States  and 
Italy,  in  1868,  copies  of  papers  authenticated  by  official  seals  are 
to  be  received  as  legal  evidence,  in  the  courts  of  both  countries.^ 
The  same  provision  is  made  in  the  treaty  of  December  5,  1868, 
between  the  United  States  and  Belgium,^  and  in  other  treaties. 
When  there  is  an  authorized  interchange  of  statutes,  then  the  vol- 
umes of  the  statutes  received  may  be  proved ;  or  the  statutes  may 
be  proved  by  exemplification,  or  by  parol.*  The  federal  supreme 
court  has  accepted  as  sufficiently  proved  a  copy  of  the  Frencli 
Civil  Code,  bearing  the  imprint  of  the  Frencli  royal  press,  and 
received  in  international  exchange,  with  the  indorsement,  "  Les 
Garde  des  Sceaux  de  France  a  la  Cour  Supreme  des  Etats  Unis."  ^ 


knowledge  -whether  the  legislature  of 
New  York  had  made  any  change  be- 
tween 1852  and  1869,  and  he  testified 
that  he  could  not  state  positively  that 
none  had  occurred.  The  fair  infer- 
ence, however,  from  his  evidence,  was, 
that  if  any  change  had  been  made  he 
would  have  been  likely  to  have  known 
of  it,  and  that  he  was  not  aware  of 
any  alteration. 

"  The  court  admitted  the  volume, 
and  the  defendant's  counsel  excepted. 

"  I  am  of  the  opinion  that  the  rul- 
ing was  correct.  It  would  seem  that 
the  book,  as  it  stands  described  in  the 
record,  was  within  the  provision  be- 
fore cited.  It  appeared  to  be  a  vol- 
ume of  New  York  statutes,  published 
by  authority  of  the  state,  and  pos- 
sessing this  character  of  identity  and 
authenticity,  it  approved  itself  as  an 
item  which  was  admissible.    People  v. 

280 


Lambert,  5  Mich.  349;  Merrifield  v. 
Bobbins,  8  Gray,  150;  Inhabitants  of 
Woodstock  V.  Hooker,  6  Conn.  35; 
Hale  V.  N.  J.  Steam  Navigation  Co., 
15  Conn.  539;  Emery  v.  Berry,  8  Fos- 
ter (N.  H.),  473."  Graves,  Ch.  J., 
People  V.  Calder,  30  Mich.  87. 

1  Wayne,  J.,  Enuis  v.  Smith,  14 
Howard,  400  ;  Story,  Confl.  of  Laws, 
§  641.  See  De  Bode  v.  B.  2  Q.  B. 
217. 

2  15  Sts.  at  Large,  609. 

8  Sts.  at  Large,  1870,  535. 

4  De  Rothschild  v.  U.  S.  6  Ct.  of 
CI.  204;  Dauphin  v.  U.  S.  6  Ct.  of 
CI.  221.  See  Grant  v.  Coal  Co.  Sup. 
Ct.  Penns.  1  Weekly  Notes  of  Cases, 
215. 

5  Ennis  v.  Smith,  14  Howard,  400. 
See,  however,  Munroe  v.  Guilleaume, 
3  Keyes  (N.  Y.),  30. 


CHAP,  v.] 


JUDICIAL   NOTICE. 


[§  312. 


§  310.  By  statutes  existing  in  many  of  the  United  States,  the 

vohime  of  statutes  of  a  sister  state,  printed  by  the  au-    printed 

thority  of  the  state,  is  primd  facie  proof  of  the  authen-  p"|),"j*^^ 

ticity  of  the  statutes.^     And  in  some  iurisdictions  such   Z'"^'?   , 

...  .  .  proof  of 

statutes  are  judicially  noticed,  from  the  printed  volume,    statutes. 

without  an  enabling  statute.^ 

§  311.  When  the  statute  of  a  state  has  received  an  authorita- 
tive construction  by  the  courts  of  such  state,  such  con-   judicial 
struction  will  be  accepted  extra-territorially  by  other   [jon^of'one 


Hence   it    is    that    the   reports  of   adiude;ed    ^^f^''   ^ . 

^  JO  adopted  by 


courts.^ 

cases  in  another  state  are  always  worthy  of  considera-  another 
tion  as  indicating  the  law  of  such  state,*  and  may  be  received  on 
an  argument  before  a  court,  as  exhibiting  such  extra-territorial 
law.^  Even  the  construction  given  in  one  state  to  an  agreement 
of  ai'bitration  entered  into  in  such  state  will  be  regarded  as 
authoritative  in  other  states.^ 

§  312.  With  the  limitations  which  have  been  just  expressed, 
an  appellate  court  will  not  take  notice  of  a  statute  of   statute 
another  state  unless  it  is  put  in  evidence  in  the  court   ^^^W^  evi- 
below.7  'i'^"'-'-'- 

1  Story,    Confl.   of    Laws,   §    644  ;         *  Kilgore    v.    Buckley,    14     Conn. 
Hunt  V.  Jphnson,  44  N.  Y.  40;  People     3G2;  Lockwood  v.  Crawford,  18  Conn. 


V.  Calder,  30  INIich.  87,  quoted  su- 
pra, §  308;  Paine  v.  Lake  Erie,  31 
Ind.  283  ;  Bradley  v.  West,  60  Mo. 
34.  "  Foreii2;n  laws  are  to  be  proved 
as  facts;  and  by  the  Gen.  Sts.  c.  131, 
§  64,  the  books  of  reports  of  cases 
adjudged  in  the  courts  of  any  other 
of  the  United  States  are  admissible 
as  evidence,  in  the  courts  of  this 
state,  of  the  unwritten  or  common 
law  of  those  other  states."  Metcalf, 
J.,  Crapn  v.  Lamkin,  7  Allen,  306. 

2  Lord  V.  Staples,  3  Foster  N.  IL 
449;  Emery  i'.  Berry,  8  Foster  N.  H. 
486 ;  Barkman  v.  Hopkins,  6  English 
Ark.  157. 

8  Whart.  Confl.  Laws,  §§  430,  776; 
Elmendorf  v.  Taylor,  10  Wheat.  159; 
Blanchard  v.  Kussell,  13  Mass.  1; 
Botanieo  ]\Ied.  Coll.  r.  Atcliinson,  41 
Miss.  188;  Saul  v.  His  Creditors,  17 
Martin,  587. 


361;  Donald  v.  Hewitt,  33  Ala.  534  ; 
Marguerite  v.  Chouteau,  3  Missouri, 
375. 

5  Penobscot  R.  R.  v.  Bartlett,  12 
Gray,  244  ;  Cragin  v.  Lamkin,  7  Al- 
len, 395. 

«  Green  v.  R.  R.  37  Ga.  456. 

T  Htmt  V.  Johnson,  44  N.  Y.  40; 
Bradley  v.  West,  60  Mo.  34.  "  The 
appellants  maile  a  further  point,  that 
the  deed  is  invalid  by  the  laws  of 
Iowa,  both  upon  the  general  principles 
heretofore  discusseil,  and  for  tlie  fur- 
ther alleged  reason  tliat  a  deed  is  not 
valid  in  that  state  until  it  is  .ncknowl- 
edged  by  the  grantor  as  his  '  volun- 
tary act.'  We  have  no  knowledge 
that  such  is  the  law  of  Iowa.  A 
statute  is  offered  to  be  read  before  us 
on  this  appeal,  which  was  not  offered 
to  the  jury.  The  aniendeil  Code  (sec- 
tion 426)    declares   that   the  printed 

281 


§  313.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


§  313.  Whether  a  court  can  take  judicial  notice  of  a  foreign 
.  jurisprudence,  or,  in  other  words,  whether  a  court  can 

elementary  receive  any  information  of  such  jurisprudence,  beyond 
dence  can  what  is  put  in  evidence  as  a  matter  of  fact,  is  a  question 
as  to  which  theory  and  practice  conflict.  On  the  one 
side  we  have  the  theory  of  the  law  forcibly  stated  by  Lord 
Brougham,  in  his  Life  of  Lord  Stowell.^  On  the  other  side,  it  is 
almost  the  universal  practice  of  courts,  in  determining  questions 
of  foreign  jurisprudence  involving  Roman  or  canon  law,  to  re- 
sort to  standard  Roman  and  canon  law  authorities  as  supple- 
mentary to  and  explanatory  of  the  testimony  of  experts.^  The 
statutes  of  another  state  '  shall  be  ad-     evidence  before  Sir  W.  Scott,  and  as 


milled  by  the  courts  and  officers  of 
this  state  on  all  occasions,  as  pre- 
sumptive evidence  of  such  laws,  and 
that  the  unwritten  or  common  law  of 
every  other  state  may  be  proved  as 
facts  by  parol  evidence,  and  the  books 
of  reports  of  cases  adjudged  in  their 
courts  may  be  admitted  as  presump- 
tive evidence  of  the  law.'  The  statutes 
of  other  states,  it  has  always  been 
held,  are  to  be  proved  as  matters  of 
fact.  The  Code  simplifies  the  mode 
of  proof  by  enacting  that  it  may  be 
made  by  producing  a  printed  volume, 
purporting  to  be  by  authority  of  the 
state  government,  in  which  the  stat- 
utes are  contained.  This  is  made  pre- 
sumptive evidence  of  its  existence. 
It  is,  however,  proof  to  be  produced 
on  the  trial  like  other  proof.  It  can- 
not be  produced  in  the  appellate  court 
any  more  than  the  respondent  could 
produce  counter  testimony  before  this 
court,  that  such  is  not  the  law  of  Iowa. 
The  court  of  appeals  does  not  sit  for 
that  purpose.  The  point  is  not  before 
this  court,  and  we  are  not  competent 
to  pass  upon  it."  Hunt,  C,  Hunt  v. 
Johnson,  44  N.  Y.  40. 

^  "  It  is  possibly  hypercritical  to  re- 
mark that  one  inaccurate  view  pervades 
a  portion  of  this  judgment  (in  Dalrym- 
plei'.  Dalrymple),  Although  the  Scot- 
ish  law  was  of  course  only  matter  of 

282 


such  for  the  most  part  deals  with  him, 
he  yet  allowed  himself  to  examine  the 
writings  of  commentators,  and  to  deal 
with  them  as  if  he  were  a  Scottish  law- 
yer. Now,  strictly  speaking,  he  could 
not  look  at  those  text  wi-iters,  nor  at 
the  decisions  of  the  judges,  except  only 
so  far  as  they  had  been  referred  to  by 
witnesses,  the  skilful  persons,  the  Scot- 
tish lawyers,  whose  testimony  he  was 
entitled  to  consider.  For  they  alone 
could  deal  with  either  dicta  of  text 
writers  or  decisions  of  courts.  He  had 
no  means  of  approaching  such  things, 
nor  could  avoid  falling  into  errors 
when  he  endeavored  to  understand 
their  meaning,  and  still  more  when  he 
attempted  to  weigh  them  and  to  com- 
pare them  together.  This,  at  least,  is 
the  strict  view  of  the  matter,  and  in 
many  cases  the  fact  would  bear  it  out. 
Thus  we  constantly  see  gross  errors 
by  Scottish  and  French  lawyers  of 
eminence,  when  they  think  they  can 
apply  an  English  authority.  But  in 
the  case  to  which  we  are  referring,  the 
learned  judge  certainly  deals  as  hap- 
pily, and  as  safely,  and  as  successfully 
with  the  authorities,  as  with  the  con- 
flicting testimonies  which  it  was  his 
more  proper  province  to  sift  and  to 
compare."  Statesmen  of  the  Time  of 
Geo.  HI.  2d  ser.  76. 

2  See,  also,  cases  cited  supra,  §  411. 


CHAP,  v.] 


JUDICIAL   NOTICE. 


[§  314. 


conflict,  however,  may  be  reconciled  by  remembering  that  the 
testimony  of  experts  to  a  foreign  law  is,  like  the  testimony  of  an 
ordinary  witness  to  any  objective  fact,  subject  to  correction  by 
recurring  to  such  general  laws  (e.  g.  laws  of  general  and  primary 
jurisprudence,  as  well  as  laws  physical  and  psychological)  of 
which  a  court  from  the  nature  of  things  takes  judicial  notice.^ 
A  court  also,  as  we  have  seen,  takes  notice  of  prior  jurisprudences 
which  lie  at  the  basis  of  the  local  law  ;2  and  as  such,  in  many  if 
not  all  relations,  the  Roman  and  canon  laws  may  be  classed.  A 
witness  testifies  to  a  physical  fact,  and  the  court,  in  construing 
and  applying  the  testimony,  avails  itself  of  an  ordinary  knowledge 
of  the  laws  of  physics.^  So,  when  an  expert  testifies  to  a  fact  of 
a  foreign  jurisprudence  based  on  the  Roman  or  canon  law,  the 
court  may  resort  to  treatises  on  Roman  or  canon  law,  in  order  to 
construe  and  apply  the  testimony  of  the  expert. 

§  314.  But  ordinarily,  in  one  state  in  the  American  Union,  the 
law  of  another  state  will  be  presumed  to  be  the  same  as   ^^^^  ^j 
the  lex  fori,  in  all  matters  not  involving  local  statutory   o">er  state 

^  .  .       "  .  .       presumed 

idiosyncrasies  ;    and    this   presumption   continues  until   not  to  dif- 
rebutted  by   proof   of   a  difference.*     Yet,  as  is  else-   the  lex 
where  seen,  when  there  ai'e  two  conflicting  laws,  that 
will  be  accepted  which  will  best  sustain  an  obligation.^     Hence 
the  presumption  of  identity  will  not  be  applied  when  the  effect 

1  Sup.  §§  282,  299.    See  infra,  §  33G 

2  See  supra,  §  291. 


8  Infra,  §§  335-6. 

*  Mostyn  r.  Fabrijras,  1  Cowp.  174; 
Smith  V.  Gould,  4  Moore  P.  C.  21 ; 
Territt  v.  WoodrulT,  19  Vt.  182; 
Langdon  v.  Young,  33  Vt.  182;  Chase 
V.  Ins.  Co.  9  Allen,  311  ;  ClufT  v.  Ins. 
Co.  13  Allen,  308  ;  Robinson  v.  Dau- 
chy,  3  Barb.  20  ;  Pomeroy  v.  Ains- 
worth,  22  Barb.  118  ;  Huth  v.  Ins.  Co. 
8  Bosw.  538  ;  Wrij^ht  v.  Delafield,  23 
Barb.  498 ;  City  Bank  v.  Bidwell,  29 
Barb.  325  ;  Bradley  v.  Ins.  Co.  3  Lan- 
sing, 341  ;  Savage  v.  O'Neil,  44  N.  Y. 
298  ;  Conolly  v.  Riley,  25  ]\Id.  402  ; 
Smith  V.  Smith,  19  Grat.  545  ;  Crake 
V.  Crake,  18  Ind.  150  ;  Davis  v.  Rog- 
ers, 14  Ind.  424  ;  Crane  v.  Hardy,  1 
Mich.  5G  ;  Ellis  v.  Maxson,  19  Mich. 


18G  ;  Bean  v.  Briggs,  4  Iowa,  4G4  ; 
Crafts  V.  Clark,  38  Iowa,  237  ;  Cooper 
V.  Reaney,  4  ^Minn.  528  ;  Brimhall  v. 
Van  Campen,  8  Minn.  13  ;  Rape  v. 
Ileaton,  9  Wise.  328  ;  Walsh  v.  Dart, 
12  Wise.  G35  ;  Hickman  v.  Alpaugh, 
21  Cal.  225  ;  Hill  v.  Grigsl.y,  32  Cal. 
55  ;  State  v.  Patterson,  2  Ired.  (N.  C.) 
L.  34G;  Atkinson  v.  Atkinson,  15  La. 
An.  4  91  ;  Thomas  v.  Bcekujan,  1  B. 
Monr.  29  ;  Cox  v.  Morrow,  14  Ark. 
G03 ;  Sharp  v.  Sliarp,  35  Ala.  574; 
Warren  v.  Lusk,  IG  Mo.  102  ;  Hough- 
taling  I'.  Ball,  19  Mo.  84;  Lucas  w. 
Ladew,  28  Mo.  342  ;  Biindy  r.  Hart, 
40  Mo.  403  ;  Bemis  v.  McKenzie,  13 
Fla.  553  ;  Green  v.  R'lgely,  23  Tex. 
539.  See  other  cases  supra,  §  300;  in- 
fra, §  315. 

6  infra,  §  1250. 

283 


§  316.] 


THE   LAW   OF   EVIDENCE. 


[book  m 


is  to  defeat  the  intention  of  the  contracting  parties.  ^  It  has 
been  said  that  it  will  not  be  presumed  that  the  law  of  a  British 
colony  is  the  common  law  of  England.^  And  certainly  it  will 
not  be  presumed  thiit  the  English  common  law  exists  in  any 
state  not  settled  by  English  colonists.^ 

§  315.  The  exception  just  noted,  as  to  local  idiosyncrasies,  is 
Presunip-  based  on  a  sound  principle.  So  far  as  concerns  the 
identk  Icaduig  principles  of  the  English  common  law,  as  mod- 
not  attach-   ified  bv  American  use,  it  is  natural  for  the  courts  of 

able  to  lo-  "^ 

cai  pecii-  one  state,  which  adopts  these  principles,  to  assume  that 
the  conclusions  it  draws  from  them  are  the  same  as 
those  drawn  from  the  same  premises  by  courts  of  other  states.* 
But  this  conclusion  will  not  be  made,  as  we  have  already  seen, 
as  to  those  states  (e.  g.  Louisiana)  in  which  the  Roman  law  is 
accepted  as  a  basis.  Nor  can  a  judge,  as  to  a  notoriously  pecul- 
iar domestic  rule,  assume  without  absurdity  that  such  rule  ob- 
tains in  a  sister  state. ^ 

§  316.  While  the  interpretation  of  a  contract,  as  is  elsewhere 
Lex  fori      seen,  is  usually  to  be  settled,  so  far  as  concerns  its  for- 

detennines  "^ 

rule  of  evi-   mal  parts,  by  the  lex  loci  conti^actus,  and  so  far  as  its 

dence. 


1  See  Whart.  Confl.  of  Laws,  §  780; 
Cutler  y.  Wright,  22  N.  Y.  472;  Smith 
V.  Whitaker,  23  111.  367. 

2  Owen  V.  Boyle,  15  Me.  147. 

8  Whitford  V.  R.  R.  23  N.  Y.  465  ; 
Savage  v.  O'Neil,  44  N.  Y.  298 ;  Ker- 
mott  V.  Ayer,  11  Mich.  181. 

*  Thurston  ik  Percival,  1  Pick.  415 
Cutter    V.   Wright,    22    N.    Y.   472 
Whitford   V.   R.   R.    23    N.  Y.  465 
Mendenhall  v.   Gately,  18  Ind.    149 
Buckinghouse  v.  Gregg,  19  Ind.  401 
Griffin  V.  Carter,  5   Ired.  N.  C.  (Eq.) 
413  ;    Goodman   v.   Griffin,    3    Stew. 
(Ala.)  IGO;  Averett  v.  Thompson,  15 
Ala.  6  78;    Reese   v.  Harris,   27  Ala. 
301;  Connor  v.  Trawick,  37  Ala.  289; 
Kermott  v.  Ayer,  11  Mich.  181;   Gor- 
don V.  Ward,  16  Mich.  360  ;   Smith  v. 
Whitaker,  23  111.   367;  Thompson  v. 
Monroe,  2  Cal.  99;  Spann  d.  Crummer- 
ford,  20  Tex.  216;  Locke  v.  Ruling,  24 
Tex.  311 ;  and  cases  cited  supra,  §  314. 

284 


6  McCulloch  V.  Norwood,  58  N.  Y. 
563  ;  Hull  v.  Augustine,  23  Wise.  383. 

"  It  seems  to  me  to  be  conceded,  on 
the  part  of  the  appellant,  that,  there 
being  no  proof  of  the  law  of  Ohio  on 
the  subject,  it  is  to  be  presumed  that 
the  law  of  Ohio  is  the  same  as  our 
own.  That  such  a  presumption  ex- 
ists in  respect  to  statute  law  is  a  prop- 
osition by  no  means  so  clear  as  ap- 
pears to  be  supposed.  Expressions 
are  contained  in  some  of  the  opinions 
which  have  been  cited  favoring  the 
position  that  the  pi-esumption  exists 
with  reference  to  purely  statutory  reg- 
ulations, but  there  is  no  authoritative 
decision  to  that  effect.  It  is  difficult 
to  find  any  reason  upon  which  such  a 
rule  can  rest,  and  when  the  question 
is  distinctly  presented  we  regard  it  as 
still  open  to  examination."  Rapallo, 
J.,  58  N.  Y.  567,  McCulloch  v.  Nor- 
wood. 


CHAP,  v.] 


JUDICIAL  NOTICE. 


[§  317. 


substance,  by  the  lex  loci  solutionis^  the  admissibility  of  the  evi- 
dence by  which  the  contract  is  to  be  enforced  is  to  be  adjudicated 
according  to  the  lex  fori?-  The  mode  of  solemnizing  instruments 
adopted  by  a  state  will  be,  as  to  instruments  executed  in  its  ter- 
ritory, extra-territorially  respected,  on  the  principle  locus  regit 
actum? 

III.   EXECUTIVE   AND   JUDICIAL  DOCUMENTS. 

§  317.  Judicial  notice  will  be  taken  of  domestic  executive 
decrees  and  ordinances  of  state  ;  when  these  are  issued  q^^^^  ^jji 
in  authentic  public  documents  they  need  not  be  proved.^  If'^execu"^^ 
But  a  proclamation  or  other  decree,  if  offered  in  evi-  tive  docu- 
dence,  must  be  in  some  way  verified ;  ^  though  the 
copy  of  a  public  document,  as  printed  by  order  of  the  Senate  of 
the  United  States,  is  competent  evidence  of  a  document  commu- 
nicated to  the  Senate  by  the  President.^  Among  such  docu- 
ments may  be  noticed :  proclamations  of  peace  or  war  ;  ^  gov- 
ernment surveys  of  public  lands ;  ^  orders  of  a  military  gov- 
ernor, or  other  commanding  oflBcer,  during  civil  war,  so  far  as 
bearing  on  judicial  procedure,^  though  otherwise  when  such 
orders  come  up  collaterally ;  ^  the  amnesty  proclamations  of 
the  chief  executive,!"  and  treaties  with  foreign  powers,  of  the 
date  of  whose  ratification  notice  will  also  be  taken.^^  Unless  a 
statute  requires  evidence  of  a  specific  character  to   accompany 


^  British  Lin.  Co.  v.  Drummond, 
10  B.  &  C.  903  ;  Clark  v.  Mullick,  3 
Moo.  P.  C.  299;  Trirabey  v.  Vignier, 
1  Bing.  N.  C.  151  ;  Bain  v.  R.  R.  3 
H.  of  L.  Cas.  19;  Yates  v.  Tliomson, 
3  CL  &  F.  5  77  ;  Brown  v.  Thornton, 
6  Ad.  &  E.  185;  Donn  v.  Lippman, 
5  CL  &  F.  1 ;  Lawson  v.  Pinckney,  40 
N.  Y.  Sup.  Ct.  187.  See  Whart. 
Confl.  of  L.  §  7.56  etseq. ;  Story  Confl. 
of  L.  §§  556,  029. 

2  Infra,  §§  689,  697. 

2  See  Dii[)ays  V.  Sheplierd,  12  Mod. 
216. 

*  Van  Omcron  v.  Dowick,  2  Camp. 
44. 

6  Whiton  V.  Ins.  Co.  109  Mass.  21. 
See  supra,  §  127;  infra,  §  638. 

•  Dodder  v.  Huntingfield,  11  Ves. 


292 ;   U.  S.  V.  Ogden,  Trial  of  Smith 
&    Ogden,  287.     Sec  infra,  §  338. 

■^  Mossman  v.  Forest,  27  IniL  233; 
Hill  V.  Bacon,  43  111.  477;  Atwater 
V.  Schenck,  9  Wise.  IGO;  AVriglit  v. 
Phillips,  2  Greene  (Iowa),  191. 

8  Chapman  v.  Ilerold,  58  Penn.  St. 
106;  Lanfear  v.  Mestier,  18  La.  An. 
497  ;  New  Orleans  Canal  Co.  v.  Tem- 
pleton,  20  La.  An.  141  ;  Gates  v.  John- 
son Co.  3GTe.\.  144, 

9  Burke  I'.  Miltenberger,  19  Wall. 
519.     Supra,  §297. 

10  Armstrong  v.  U.  S.  13  Wallace, 
15L 

"  United  States  v.  The  IV'.;?y,  1 
Cranch,  103;  United  Slates  c.  Ucyne.s 
9  How.  127  ;  Carson  i'.  Smith,  5  .Minn. 


78. 


285 


§  320.]  THK  LAW   OF   EVIDENCE.  [BOOK  II. 

the  official  acts  which  it  authorizes,  no  such  evidence  will  be  re- 
quired by  the  court.^ 

§  318.  But  a  state  court  will  not  take  notice  of  the  practice  of 
the  several  departments  of  the  federal  government ;  ^  nor  will  a 
state  court  take  notice  of  federal  executive  acts  partaking  of  a 
private  character.^  Nor  will  notice  be  taken  of  the  regulations 
adopted  by  particular  branches  of  state  service  even  by  courts  of 
the  state,^  nor  of  tlie  postal  arrangements  at  particular  towns,^ 
nor  of  a  letter  of  the  secretary  of  the  navy  addressed  to  the 
clerk  of  the  court  of  th.&  judex  for  i.^ 

§  319.  In  the  United  States  it  has  been  held  that  the  public  seal 
Public  seal  of  ^  state  proves  itself  in  the  courts  of  such  state,  and 
Teif-moV  ^^^  ^^®  courts  of  the  United  States.^  The  same  rule 
iig-  has  been  extended,  and  with  reason,  to  the  seals  of  such 

subordinate  executive  officers  as  are  entitled  to  use  seals.^  The 
seal  of  a  foreign  sovereign  has  also  been  held  to  be  self-proving, 
so  far  as  to  constitute  a  primd  facie  case.^ 

§  320.  The  seal  of  a  notary  public  is  judicially  noticed,  both 
So  of  seals  i^i^i'^'  ^-^d  extra-territorially,  by  international  courts,  he 
of  notaries,  "being  an  officer  recognized  as  such  for  commercial  pur- 
poses by  international  law.^*'     His  acts  are  acta  puhlica,  and  as 

*  Carpenter  v.  Dexter,  8  Wall.  513.      ing  v.  Vincent,  24  Vt.  501  ;  Griswold 

2  Hensley  v.  Tarpey,  7  Cal.  288.  v.  Pitcairn,   2    Conn.  85  ;    Thompson 

3  Dole  V.  Wilson,  16  Minn.  525.  v.  Stewart,  3  Conn.  171  ;  Mumford  v. 

4  Palmer  v.  Aldridge,  16  Barb.  Bowne,  Anth.  (X.  Y.)  40;  Hadfield 
(N.  y.)  131.  i:  Jameson,  2  Munf.  53;  Stanglein  v. 

^  Wiggins   V.   Burkham,   10   Wall.  State,   17    Oh.   St.  453;    Steward   v. 

129.  Swanzy,  23  Miss.  502.     See,  however, 

6  Mason's  case,  4  Ct.  of  CI.  495.  Beach   v.   Workman,    20   N.  H.   379. 

'  Church   V.    Hubbart,     2    Cranch,  See  infra,  §  695. 

187;    U.    S.    V.    Amedy,    11   Wheat.  "  Supra,   §   123;  Bayl.  Bills,  490 ; 

392;  Robinson  v.  Gilman,  20  Me.  299;  Furnell  v.  Stackpoole,  Milv.  Ecc.  Ir. 

Lincoln    v.    Battelle,    6    Wend.   475;  R.    485;    Hutcheon  v.    Mannington, 

Jones  V.  Gale,  4  Mart.  635 ;  Wood  v.  6    Ves.    823  ;    Wilson  v.    Stewart,    1 

Fitz,  10  Mart.  196  ;   Garnet,  ex  parte,  Cranch   C.   C.  128  ;  Yeaton   v.  Fry,  5 

7  Leg.  Int.  174.     See  U.  S.  v.  Wag-  Cranch,  335  ;  Orr  v.  Lacy,  4  McLean, 

ner,  L.  R.  2  Ch.   App.   585.      Infra,  243;  Porter  v.  Johnson,  1   Gray,  175; 

§  695.  Brown  v.  Bank,  6   S.  &  R.  484';  Fel- 

8  People  u.  John,  22  Mich.  461.  lows   r.  Menasha,   11  Wise.   558.     A 

*  U.  S.  V.  Wiggin,  14  Pet.  334  ;  court  will  not  determine  the  title  of  a 
U.  S.  V.  Rodman,  15  Pet.  130  ;  Wat-  de  facto  sovereign.  State  v.  Dunwell, 
son  V.  Walker,  23  N.  H.  471;  Spauld-  3  R.  L  127. 

286 


CHAP,  v.]  JUDICIAL  NOTICE.  [§  323. 

such  must  be  noticed,  subject,  however,  to  impeachment,  either 
as  to  vahdity  or  verity,  by  the  contesting  party .^  But  strictly, 
a  court  subject  to  the  English  common  law  requires  proof  of  the 
seal  of  a  foreign  notary  .^  A  fortiori^  must  proof  of  authenticity 
be  given  where  there  is  no  seal,  and  where  the  test  is  handwrit- 
ing ;  as  is  frequently  the  case  with  German  notarial  certificates.^ 

§  321.  In  England  the  common  law  in  this  relation  has  been 
so  much  modified  by  statute  that  the  more  recent  ad-  g^  ^j  gg^j^ 
judications  are  mostly  without  common  law  authority.  °^  courts. 
It  may,  however,  be  generally  stated,  that  a  judge  will  notice 
ex  officio  the  seals  of  all  infra-territorial  courts  which  are  author- 
ized to  have  seals.*  So,  with  us,  a  federal  judge  will  notice  the 
seals  of  the  several  state  courts.^  It  is  otherwise  as  to  foreign 
courts.^  But  courts  acting  under  the  provisions  of  the  Constitu- 
tion or  laws  of  the  United  States  are  not,  as  to  a  state  court,  for- 
eign courts  in  this  sense. '^ 

§  322.  Where  handwriting,  and  not  seal,  is  employed  to  attest 

genuineness,  there  is  no  reason  why  the  signature  of  an    ^     „ 

.  .  .      .     ^  °      .     .  .  So  of  hand- 

executive  officer  should  not  in  like  manner  be  judicially    writiiiRof 

•  •         •  GXGCUtlVG" 

noticed.     It  is  at  least  as  distinctive  as  a  seal ;   it  is 
equally  the    subject   of    a    prosecution    for  forgery  ;    and   when 
accepted   as   a  mode   of   solemn  verification,  should  be  equally 
respected  by  the  courts.^ 

§  323.  As  courts  take  judicial  notice  of   laws  binding  them- 
selves, it   is  essential  that  they  should   take   judicial   judicial 
notice  of  the  lines  of  demarcation  which  separate  other   "ak'eii  of 
sovereignties  from  that  to  which  they  are  themselves   ei'i^.g^or'" 
subject.     Hence  a  court  is  bound  to  take  such  notice   foreign 

"i  .  ...  sovcreign- 

of  the  existence  and  jurisdiction  of  all  independent  sov-   ties. 

^  Sec  Endemann's  Bewcislehre,  p.  Kempton  v.  Cross,  Rep.   temp.  Ilanl. 

2G8;  Durant  I.  c.  No.  15  ;  Masc.  920.  108;    State    v.  Snowden,   1    Brewster, 

2  Earl's   Trusts,  in  re,  4   Kay  &  J.  218. 

SCO  ;  Davis's  Trusts,   L.  11.  8  Eq.  98  ;  ^   Garnet,   ex    parte,    7    Lcjr.    Int. 

Nye   V.    Maedouald,   L.    R.    3    P.    C.  174. 

331.  «  De  Sobry  v.  De  Laistre,  2  Har.  & 

*  Endemann,  ut  supra.     See  infra,  J.  191. 

§  692.  7  Mangun  r.  Webster,  7  Gill,  78. 

*  Fowgassa's  case,  24  Edw.  3,  23,  *  See,  to  this  effeet,  Alcoek  r.WIiat- 
cited  Olive  v.  Gain,  2  Sid.  14G  ;  Mel-  more,  8  Dowl.  615;  Sliort  r.  "Williams, 
ville's  case,  29  IIow.  St.  Tr,  707;  4  Dowl.  357;  R.  r.  Miller,  2  W.  Bl. 
Green   v.  Walker,    2  Ld.  Ray.   893;  797  ;  R.  i-.  Gully,  1  Leaeli,  98;  Jones 

287 


§  324.] 


THE   LAW   OF   EVIDENCE. 


[book  II, 


eroigntics,  if  recognized  as  such  by  the  sovereignty  to  which  the 
court  is  subject.^  But  where  a  foreign  state  is  unacknowledged 
by  the  home  sovereign,  then  the  existence  and  jurisdiction  of 
such  state  must  be  proved  by  evidence. ^  And  it  would  seem 
that  a  court  is  bound  to  take  judicial  notice  of  the  fact  that  a 
foreign  state  has  not  been  recognized  by  the  home  sovereign.^ 
§  324.  A  court  takes  judicial  notice  of  the  judges  of  other 
courts  in  the  same  state.^  Under  the  provision  of  the 
Constitution  of  the  United  States,  giving  extra-terri- 
torial force  to  state  judgments,  the  courts  of  one  state 
will  take  notice  that  courts  of  record  of  another  state 
have  appropriate  civil  functions,''  and  that  the  clerks  of  such 


Notice 
taken  of 
judicial  of- 
ficers and 
practice. 


V.  Gale,  4  Mart.  635  ;  Wood  v.  Fitz, 

10  Mart.  196  ;  Scott  u.  Jackson,  12  La. 
An.  640. 

1  City  of  Berne  v.  Bk.  S  Ves.  347  ; 
Un.  States  v.  Wagner,  L.  R.  2  Ch. 
Ap.  585  ;  Gilston  v.  Hoyt,  1  Johns. 
R.  543. 

2  Yrisarri  v.  Clement,  11  Moore, 
314  ;  3  Bing.  432 ;  2  C.  &  P.  225. 
See  Taylor  v.  Barclay,  2  Sim.  213. 

8  Taylor  v.  Barclay,  2  Sim.  213. 
See,  however,  Bolder  v.  Bank,  10 
Ves.  354,  where  Lord  Eldon  declared, 
and  with  some  reason,  that  he  could 
not  judicially  take  notice  of  the  non- 
recognition  by  England  of  the  then 
Swiss  revolutionary  organization. 

*  Buford  V.  Hickman,  1  Hempst. 
232  ;  Follain  v.  Lefevre,  3  Rob.  (La.) 
13  ;  Hawks  v.  Kennebec,  7  Mass.  461; 
Ripley  v.  Warren,  2  Pick.  592 ;  Des- 
pau  V.  Swindler,  3  Mart.  N.  S.  705  ; 
McKinney  v.  O'Connor,  26  Tex.  5 ; 
though  this  is  doubted  in  England, 
as  to  inferior  courts.  Van  Sandau  v. 
Turner,  6  Q.  B.  7  73;  Skipp  v.  Hooke, 
2  Str.  1080.  See  Taylor's  Ev.  § 
19. 

^  Dozier  v.  Joyce,  8  Port.  (Ala.) 
303.  See  Vassault  v.  Seitz,  31  Cal. 
225  ;  though  see  Fellows  v.  Menasha, 

11  AVisc.  558. 

In  England,  it  was   for  some   time 

288 


open  whether  or  not  the  judges  of  one 
of  the  superior  courts  are  bound  to  no- 
tice who  are  the  judges  in  the  other 
superior  courts.  In  Skipp  v.  Hooke,  2 
Str.  1080;  Andr.  74,  S.  C,  the  ques- 
tion appears  to  have  arisen  ;  but, 
though  reported  by  Strange,  as  well 
as  Andrews,  it  does  not  appear  from 
either  report  whether  this  particular 
point  was  actually  determined  by  the 
court.  Probably  at  the  present  day, 
Mr.  Taylor  argues,  the  question  would 
be  answered  in  the  affirmative ;  on 
the  ground  that  the  appointment  of 
the  judges  is  a  fact  of  general  noto- 
riety, and  as,  moreover,  their  signa- 
tures, when  attached  to  judicial  or 
official  documents,  must  be  judicially 
noticed  by  8  &  9  Vict.  c.  113,  §  2. 
Taylor's  Ev.  §  19.  It  may,  however, 
be  noticed,  on  the  other  side,  that  the 
queen's  bench  has  refused  to  notice 
who  was  judge  of  the  then  court  of 
review.  Van  Sandau  v.  Turner,  6 
Q.  B.  773,  786.  It  is,  however,  set- 
tled that  the  superior  courts  Avill  not, 
unless  when  called  upon  to  review 
inferior  courts  of  limited  jurisdiction, 
(Chitty  V.  Bendy,  3  A.  &  E.  324;  4  N. 
&  M.  842,  S.  C),  take  cognizance  of 
the  customs  and  proceedings  therein, 
unless  such  proceedings  are  statutory. 
R.   V.  U.  of  Cambridge,  2  Ld.   Ray. 


CHAP,  v.] 


JUDICIAL   NOTICE. 


[§  325. 


courts  act  according  to  statute  law.^  A  court  must  take  notice 
of  its  own  practice,^  and  of  that  of  other  coordinate  courts  in  the 
same  state ;  ^  but  not  of  that  of  inferior  courts,  unless  brought  up 
on  writ  of  error,  or  proved  on  trial.*  Where,  however,  the  prac- 
tice of  an  inferior  court  is  governed  by  statute,  this  involves  judi- 
cial notice  by  a  superior  court.^  So  the  prerogatives  of  other 
courts  and  their  officers  and  attorneys  will  be  to  the  same  extent 
judicially  noticed.^  The  jurisdiction  of  such  courts  is  necessarily 
matter  of  judicial  notice.'^ 

§  325.  A  court  will  take,  in  each  case,  judicial  notice  of  all  the 


1334.  In  that  case  the  court  refused 
to  notice  that  the  university  court  in 
Cambridge  proceeded  according  to  the 
rules  of  the  civil  law.  See,  also,  Lane's 
case,  2  Rep.  16  6,  note  d ;  Peacock  v. 
Bell,  1  Wms.  Saund.  75;  and  Dance 
V.  Robson,  M.  &  M.  295. 

Judicial  notice,  however,  will  be 
taken  of  the  proceedings  of  courts, 
which,  as  in  the  case  of  the  court  of 
the  V.  Ch.  of  Oxford,  under  the  act 
of  17  &  18  Vict.  c.  81,  §  45,  must 
now,  in  all  matters  of  law,  be  governed 
by  the  common  and  statute  law,  and 
not  by  the  rules  of  the  civil  law.  Tay- 
lor, §  19. 

Thus,  it  is  an  undoubted  rule  of 
pleading,  that  nothing  shall  be  in- 
tended to  be  out  of  the  jurisdiction  of 
a  superior  court  but  that  which  is  so 
expressly  alleged ;  and,  consequently, 
the  records  in  the  courts  of  counties 
palatine,  they  being  superior  courts, 
need  not  state  the  cause  of  action  to 
have  arisen  within  the  jurisdiction. 
Peacock  v.  Bell,  1  Wms.  Saund.  74, 
recognized  in  Gosset  v.  Howard,  10 
Q.  B.  453  ;  Taylor's  Ev.  §  72. 

^  Morse  v.  Hewett,  28  Mich.  481. 

«  Pugh  V.  Robinson,  1  T.  U.  118  ; 
Bethune  v.  Hale,  45  Ala.  522  ;  Gilli- 
land  V.  Sellers,  2  Oh.  N.  S.  223. 

'  Tregany  r.  Fletcher,  1  Ld.  Raym. 
154;  Caldwell  v.  Hunter,  10  Q.  B.  85; 
Newell  V.  Newton,  10  Pick.  4  70  ;  Tuck- 

VOL.   I.  19 


er  V.  State,  11  Md.  322.  Though  the 
common  law  courts  would  not  take 
judicial  notice  of  chancery  practice. 
Dicas  V.  Brougham,  1  M.  &  Rob.  309  ; 
Sims  V.  Marryatt,  1 7  Q.  B.  288. 

*  Chitty  V.  Dendy,  3  A.  &  E.  324  ; 
4  N.  &  M.  842  ;  R.  v.  Cambridge,  2 
Ld.  Raym.  1334;  March  v.  Com.  12 
B.  Mon.  25 ;  Cutter  v.  Caruthers,  48 
Cal.  178;  Keeler,  ex  parte,  Hemp. 
30G.  See  Cherry  v.  Baker,  17  Md. 
75. 

6  Hunter  v.  Neck,  3  M.  &  Gr.  181; 
Lindsay  v.  Williams,  17  Ala.  229  ;  Pe- 
terson, e.x  parte,  33  Ala.  74  ;  Rodgers 
V.  State,  50  Ala.  102;  Kilpatrick  v. 
Com.  31  Penn.  St.  198  ;  Tucker  v. 
State,  11  Md.  322;  Chambers  v.  Peo- 
ple, 5  111.  351  ;  Graham  i'.  Anderson, 
42  111.  514  ;  WiUiams  v.  Hubbard,  1 
Mich.  446  ;  Gilland  v.  Sellers,  2  Ohio, 
St.  223;  Buckinghouse  v.  Gregg,  19 
Ind.  401  ;  McGinnis  v.  State,  24 
Ind.  500,  and  cases  cited  in  next 
note. 

«  Ogle  V.  Norclitle,  2  Ld.  Ray.  869; 
Chatland  c.  Thornley,  12  East,  544  ; 
Hunter  r.  Neck,  3  M.  &  Gr.  181  ; 
Whitaker  v.  Wisbcy,  12  C.  B.  56; 
Buford  i;.  Hicknum,  Hemp.  232  ;  Mc- 
Kinney  i;.  O'Connor,  26  Tex.  5. 

7  Doe  V.  Caperton,  9  C.  &  P.  116; 
Spooncr  v.  Juddow,  6  Muorc  P.  C 
257, 

289 


§  328.]  THE    LAW    OF   EVIDENCE.  [BOOK  II. 

proceedings  and  pleadings  in  such  case ;  ^  and  hence,  even  after 
„  .  .„  an  appeal  and  reversal,  and  remander  of  the  proceed- 
bc  taken  of   ings,  the  court  will  take  notice  from  the  record  who 

proceed-  ,  .    .       ,  on  -n 

ings  in'        wcre  the  original  attorneys.-^     bo  a  court  will  recognize 
the  professional  signatures  of  the  attorneys  to  a  suit.-^ 
So  a  court  takes  cognizance  of  the  subordinate  officers  of  its 
own,  though  not  of  other  courts.* 

§  326.  While  a  court  takes  notice  of  its  own  records,  it  cannot 
Exceptions  travel  for  this  purpose  out  of  the  records  relating  to 
taken'by  ^^®  particular  case.  Thus  in  one  case  the  court  cannot 
courts  of      t£i^'^Q  notice  of  the  proceedings  in  another  case,  unless 

their  own  r  o  '       ^ 

records.  sucli  proceedings  are  put  in  evidence.^  Nor  will  a 
court  take  notice  of  the  signatures  of  parties,  unless  such  signa- 
tures be  admitted  or  proved.^  How  far  a  court  takes  notice  of 
the  seals  of  courts  has  been  already  discussed.'^ 

IV,  NOTORIETY. 

§  327.  Of  notoriety,  the  Roman  law  gives  no  direct  limitation. 
Notoriety     ^^  ^^®  Standards,  the  word  "notorium"  is  used  ;  but 

in  Roman  {^  ^  scuse  which  is  Undefined.^  It  was  assumed,  in- 
law. 

deed,  by  the  jurists,  that  it  was  not  necessary  to  prove 

to  the  judex  quod  omnes  seiunt ;  but  we  have  no  rules  given  as 

to  the  extent  of  this  scientia  omyiium.     The  judge  was  left  to 

his  own  conscientious   judgment  of   the  facts  submitted   to  or 

elicited  by  him ;  and  among  these  were  numbered  the  ordinary 

phenomena  of  natural  and  of  social  life.     On  the  other  hand, 

fama  opinio  publica,  or  rumor,  was  not  evidence,  unless  it  should 

be  notorious  to  the  great  body  of  men,  including  the  judex. 

§  328.  The  canon  law,  which  found  its  way  into  our  earlier 

In  canon      procedure  much  more  thoroughly  than  did  the  Roman, 

^^'  took  in   theory  the   position  quod  non  in  actis,  nan  in 

1  U.  S.  V.  Erskine,  4  Cranch  C.  C.  ^  People  v.  De  la  Guerra,  24  Cal. 

299 ;    Pagett  v.    Curtis,    15    La.    An.  73  ;  Lake  Water  Co.   v.  Cowles,   31 

451  ;  State  v.  Schilling,  14  Iowa,  455;  Cal.   215;  State  v.  Edwards,  19  Mo. 

Brucker  v.  State,  19  Wise.  539  ;  Leav-  674  ;  Baker  v.  Mygatt,  14  Iowa,  131. 

ittr.  Cutler,  37  Wise.  46.  6  Alderson   v.   Bell,    9    Cal.     315; 

"^  Symmes  v.  Major,  21  Ind.  443.  Mastersoa  i'.  Le  Claire,  4  Minn.  163. 

*  Masterson  v.   Le  Claire,  4  Minn.  ''  See  supra,  §  321. 

163.  8  See  L.  6,  §  3,  De  poen.  xlviii.  19; 

*  Norvell  v.  McHenry,  1  Mich.  227;     L.  7,  Cod.  De  accus.  ix.  2. 
Dyeru   Last,  51  111.  179. 

290 


CHAP,  v.]  NOTORIETY.  [§  329. 

mundo.  Even  when  the  parties  threw  themselves  on  the  per- 
sonal knowledge  of  the  judge,  this  knowledge  was  limited  to 
matters  juridical.  That  which  the  judge  knew  in  matters  non- 
juridical  could  not  be  used  for  evidential  purposes.^  What,  how- 
ever, the  judge  officially  knew,  as  judge,  need  not  be  proved. 
In  this  sense  it  was  said  that  facta  notoria  non  indigent  proha- 
tione?  He  was  held  to  have  official  knowledge  of  all  generally 
recognized  facts,  of  which  he,  with  many  others,  was  cognizant. 
The  force  to  be  attached  to  notorium^  in  other  words,  the  ques- 
tion, quid  notorium  probet,  was  much  discussed.  It  was  con- 
ceded that  notorium  facti  transeuntis,  interpolatum,  et  juris, 
must,  if  denied,  be  proved.^  But  the  settled  rule  was  finally 
imposed,  that  notoriety,  when  unchallenged,  was  proof  on  which 
the  judgment  of  the  court  could  rest.  The  notorium  makes  joro- 
hationem  prohatam  ;^  it  is  equivalent  to  manifestum  or  liqui- 
d'um;^  it  is  distinguishable  from  fania  in  that  notorium  gives 
complete  proof,  while /ama  gives  incomplete  proof.  Much  sub- 
tle thought  was  given  to  the  question  as  to  what  degree  of  ex- 
tension was  necessary  to  constitute  notorium  ;  but  like  the  soph- 
ists' puzzle  as  to  what  is  the  number  of  grains  of  sand  which 
when  reached  make  a  heap  of  that  which  was  not  a  heap  before, 
the  question  was  one  which  was  never  satisfactorily  settled.^ 
Ultimately  it  was  agreed  that  quod  puhlice  cotistet  must  be  re- 
garded as  notorious;  and  that  as  to  whether  this  standard  is 
reached  must  be  determined  by  the  discretion  of  the  court." 

§  329.   Our  own  law,  as  we  have  already  shown,^  adopts  the 
position  that  reason  and  evidence  are  the  coordinate   General 
factors  which  go  to  make  up  proof  ;  and  that  a  judge,   j^sirs'o'"" 
in  trying  a  case,  must  not  only  exercise  his  own  logical   notoriety, 
faculties,  in  construing  and  applying  evidence,  but  must  draw  on 
his  own  sources  of  knowledge  for  such  information  as  is  common 
to  all  intelligent  persons  of  the  same  community.     Sucli  infor- 
mation, however,  must  not  only  be  thus  common,  but  must  be  of 
indisputable  truth.     When  it  becomes  disputable  it  ceases  to  fall 
under  the  head  of  notoriety. 

^  Gloss.  Veritas  in  L.  6,  §  1,  de  off.  *  B;il<l.  in  L.  1  Cod.  vii.  75. 

praes.  i.  18;  Durant.  II.  2.  de  prob.  §  '^  Masc.  conclu.  1105. 

1,  nr.  27.     See  Masc.  qu.  I.  nr.  7,  "  See  Masc.  concl.  1105,  nr.  16. 

'  Enderaann,  75.  ''  Endemann's  Bewcislehrc,  77. 

«  Masc,  c.  1107,  nr.  9,  14.  '  Supra,  §§  1-15. 

291 


§  331.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

§  330.  Hence  evidence  is  not  needed  to  establish  that  which 
Notoriety  ^^  ^^  notorious  to  persons  of  ordinary  intelhgence  that 
needs  no      i^  either  admits  of  no  doubt,  or  could  at  the  moment 

proof. 

be  established  by  a  profusion  of  indisputable  testimony. 

The  Roman  law  does  not  use  this  specific  term  in  this  relation, 
but  it  receives  as  juridical  evidence  those  conditions  of  which, 
as  part  of  ordinary  experience,  every  one  is  cognizant,  —  quod 
omnes  sciunt ;  ^  or  as  to  which,  as  matters  of  every  day  knowl- 
edge, there  is  no  possibility  of  dispute.^  The  canon  law  gives 
a  wider  course  to  this  notoriety,  when  it  speaks  of  an  evidentia 
rei  ;  quae  nulla  tergiversatione  celari  potest.^ 

§  331.  When  a  custom  is  general  and  notorious,  it  will  be 
Judicial  noticed  by  the  courts  without  proof.  This  rule  has 
notice  been  held  to  include  such  customs  of  merchants  as  are 

taken  of  .  •  i    i 

local  ciis-  general  and  notorious,*  or  as  have  been  sanctioned  by 
the  courts ;  ^  provided  such  customs  are  intelligible 
without  extrinsic  proof.^  So  judicial  notice  will  be  taken  of  the 
custom  of  the  road,  when  such  is  notorious,  e.  g.  as  to  passing  to 
right  or  left ;  "^  the  customs  of  the  sea,  even  though  not  estab- 
lished by  statute  law,  or  executive  ordinance,  or  judicial  decision, 
when  such  customs  are  general  and  notorious ;  ^  the  custom  of 
conveyancers,  so  far  as  such  custom  is  one  of  the  uniform  inci- 
dents of  ordinary  conveyancing ;  ^  the  custom  of  lawyers,  so  far 
as  it  is  in  like  manner  uniform  and  familiar ;  ^^  and  the  general 
custom  to  observe  holidays.^i  But  recognition  will  not  extend  to 
customs  which  are  simply  the  practices  of  a  trade  wdth  which 

1  L.  213,  §  2,  223,  pr.  D.  de  V.  S.  of  London,  6  E.  &  B.  771;  Smith  v. 

2  Hefter's  Appendix  to  Weber,  250.  Voss,  2  H.  &  N.  97  ;  Morrison  v.  Gen. 
8  C.  10,  X.  De  cohab.  cler.  St.  Nav,  Co.  8  Excli.  733;  Gen.  St. 
*  Barnett  v.  Brandao,  6  M.  &   Gr.  Nav.  Co.  v.  Morrison,   13  C.  B.   581; 

630;  Manny  v.  Dunlap,  3  West.  Jur.  The  Spring,  L.  R.  1   Ad.  &  Ec.   99; 

.829;  i\  C.  17  Pitts.   L.   J.  11.     See  The  Concordia,  L.  R.  1  Ad.  &  Ec.  93; 

supra,  §  298.  Gen.  St.  Nav.  Co.  v.  Hedley,  L.  R.  3 

6  See  fully  supra,  §  298.  P.  C.  44. 

6  Bodmin  Mines  Co.  in  re,  23  Beav.  ^  Willoughby  v.  "Willoughby,  1  T. 

870.  R.  772;  Rowe  v.   Grenfel,  Ry.  &  M. 

'  Leame  r.  Bray,  3  East,  593;  Tur-  398;  Doe  v.   Hilder,  2  B.  &   A.   793; 

ney  v.  Thomas,  8  C.  &  P.  104.  Howard  v.  Ducane,  1  Turn.  &  R.  86; 

8  See  Zugasti  i'.  Lamer,  12  Moore  Sugd.  V.  &  P.  78. 

P.   C.   331  ;    Maddox  v.    Fisher,    14  ^o  See  Whart.  on  Agency,  §  596. 

Moore   P.   C.  163;   Tuff  r.  Warman,  "  Sasscer  y.  Bank,  4  Md.  409.    See 

2  C.  B.  N.  S.  740;  Chadwick  v.  City  infra,  §  335. 
292 


CHAP,  v.]  NOTORIETY.  [§  335. 

the  court  cannot  be  supposed  to  be  familiar.^  In  England  it 
has  been  ruled  that  a  custom  of  London,  to  be  judicially  noticed 
without  proof,  must  be  certified  to  by  the  recorder ;  -  though 
when  a  custom,  as  a  matter  of  local  usage,  is  noticed  in  a  city 
court,  such  custom  will  be  noticed  before  a  court  to  which  such 
case  is  removed  in  error.^ 

§  332.  So  notice  will  be  taken  of  the  ordinary  course  of  the 
seasons,  with  their  general  effects  on  agriculture  ;  *  but   course  of 
not  of  special  alternations  of  weather.^  seasons. 

§  333.  Judicial  notice  will  also  be  taken  of  the  ordinary  limi- 
tations of  human  life  as  to  age,^   so  as  to  determine   Limita- 
that  children  of  a  parent,  who   died  twenty-one  years   ^^°^^  [jfg  ^ 
previously,   were  at   the   particular  time   of    age;"  or   to  age; 
that  a  person  living  a  hundred  years  ago  would  not  be  living 
now.^ 

§  334.  So  the  court  will  take  notice  of  the  ordinary  periods  of 
gestation,  so  as  to  assume  the  non-legitimacy  of  chil-  „„j  ^^  ^Q 
dren  born  ten  months  after  intercourse,  or,  when  prior  gestation, 
non-intercourse  is  proved,  five  months  after  the  act  of  inter- 
course ;  ^  and  the  same  notice  will  be  taken  when  the  object  is 
to  determine  questions  of  conflicting  paternity. ^^  So  a  court  of 
equity,  in  distributing  trust  funds,  assumes  that  women,  after  the 
age  of  fifty-three,  are  incapable  of  child-bearing.  ^^ 

§  335.  So  the  courts  will  take  notice  of  the  demonstrable  con- 
clusions of  science.     Thus  a  court  will  take  notice  of   conciu- 
the  movements  of  the  heavenly  bodies  ;  ^^  of  the  grada-   ^'°^^  °^ 

1  Johnson  v.  Robertson,  31  Md.476.  «  Allen  v.  Lyons,  2  Wash.  475. 

3  Lyons  v.  DIj  Pass,    11    A.   &  E.  '  Floyd  v.  Johnson,  2  Litt.  (Ky.) 

326;  9  C.  &  P.  68;  Bruin  v.  Knott,  12  109. 

Sim.  452  ;  Stainton  v.  Jones,  1    Doug.  «  Infra,  §  1274. 

380 ;  Brute  v.  Wait,  1  M.  &   Gr.  39  ;  "  See  L.  5.  D.  (ii.  4.)  ;  R.  v.  Luffe, 

Crosby  v.   Ilctherington,  4  M.  &   Gr.  8  East,  202;  Ileathcote'scase,  1  Macq. 

933.     See  Taylor  on  Evidence,  §  5.  Sc.  C.  277;  Whitman  c.  State,  34  Ind. 

8  Bruce  v.  Wait,    1  M.  &  Gr.  41,  360.     See  infra,  §  1298. 

n.  a.  "  Bowen  v.  Reed,  103  Mass.  46.  See 

*  Patterson  v.  McCausland,  3  Bland  Paull  v.  PadcUbrd,  IG  Gray,  2G3.    In- 
(Md),  69;  Floyd   v.    Ricks,   14  Ark.  fra,  §  1298. 

286.     See  Iloyle  I'.  Cornwallis,  1  Stra.  "  Widdow's  Trusts,   L.  R.   11   Eq. 

387;  Hanson  v.  Shackleton,  1   Dowl.  408;  Ilaynes  v.  Ilaynes,  35  L.  J.  Ch. 

Q.  C.  48.  303. 

*  Dixon  V.  NiccoUs,  39  111.  372.  "  Infra,  §  665.     See  Bury  v.  Blogg, 

\  293 


§  335.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

science  and  tions  of  time  by  longitude  ;  ^  of  the  magnetic  variations 
economy,  from  the  true  meridian  ;  ^  of  the  coincidence  of  days 
of  the  month  with  days  of  the  week,^  of  the  order  of  the  months,* 
of  the  coincidence  of  the  year  of  the  sovereign's  reign  with  the 
common  notation  ;  ^  of  the  days  on  which  fall  Sundays  and  holi- 
days ;  ^  of  the  public  coin  and  currency,'^  though  not  of  a  foreign 
currency  ;^  of  the  existence  of  "  Confederate"  currency,  and  its 
large  depreciation  during  the  civil  war,^  though  not  of  the  exact 
fluctuations  of  any  particular  kind  of  currency;  '^^  of  the  standard 
weights  and  measures  ;  ^^  of  distances  as  calculated  by  a  map;  ^^ 
of  the  ordinary  time  of  voyages,!^  of  the  habits  of  men  in  masses, 
and  of  animalsji'^  of  the  various  meanings  of  the  term  "month  " 
whether  calendar  or  lunar ;  i°  and  of  the  value  of  ordinary  labor.^^ 
So  a  court,  when  a  lottery  prosecution  is  on  trial,  will  take  notice, 
without  evidence,  of  the  peculiar  nature  and  character  of  lot- 
teries.i'^  Yet  conclusions  dependent  on  inductive  proof,  not  yet 
accepted  as  necessary,  will  not  be  judicially  noticed.  Thus  it 
has  been  held,  that  judicial  notice  will  not  be  taken  of  the 
alleged  conclusion  that  each  concentric  layer  of  a  tree  notes  a 
year's  growth. ^^     As  we  have  already  seen,  a  judge  may  draw 

12  Q.  B.  877;  though  see   Collier  v.  149;  Jones  v.    Overstreet,   4   T.   B. 

Nokes,  2   C.  &  K.  1012.  Monr.  547;  U.   S.   v.   Burns,  5  McL. 

1  Curtis  V.  Marsh,  1  C.  B.  (N.  S.)  23  ;  Daily  v.    State,  10  Ind.  536. 
153.  8  Kermott  v.  Ayer,  11  Mich.  181. 

2  Bryan  v.  Beckley,  6  Litt.  (Ky.)         »  Buford  r.  Tucker,  44  Ala.  89.  See 
91.     Infra,  §  665.  infra,  §  948. 

8  AUman   v.   Owen,   31   Ala.   167;  1°  Modawell  v.  Holmes,  40  Ala.  391. 

Sprowl  V.  Lawrence,  33  Ala.  674;  Page  "  Hockin  v.  Cooke,  4  T.  R.  314. 

V.  Faucet,    Cro.    El.   227;  Tutton   v.  "  Mouflet  v.  Cole,  L.  R.  7  Exc.  70. 

Darke,  5  H.  &  N.  649  ;  Hoyle  v.  Corn-  "  Oppenheim  v.  Leo  Wolf,  3  Sanf. 

wallis,  1  Str.  387;  Hanson  i;.  Shack-  N.  Y.  Ch.  571. 

elton,  4  Dowl.  48.  "  Infra,  §  1295. 

*  R.  V.  Brown,  M.  &  M.  164.  "  Johnston  v.  Hudleston,  4  B.  &  C, 

6  Holman  v.  Burrow,    2  Ld.  Ray.  932  ;  Turner   v.    Barlow,  3    F.  &  F. 

795  ;   R.   V.    Pringle,    2   M.    &    Rob.  946  ;  Bluck  v.  Rackman,  5  Moo.  P.  C. 

276.  308;  Simpson  r.  Margitson,  11  Q.  B. 

6  Sasscer  v.  Bank,  4  Md.  409;  Han-  23. 

son  V.  Shackelton,  4  Dowl.  48 ;  Pear-  ^'  Bell   v.  Barnet,  2   J.  J.  Marsh, 

son  V.  Shaw,  7  Ir.  L.  R.  1;  Rodgers  v.  516.     See    Seymour    v.    Marvin,    11 

State,  50  Ala.  102.  Barb.  80. 

'  Glossop  V.  Jacob,  1  Stark.  R.  69;  "  BouUemet  v.  State,  28  Ala.  83. 

Kearney  v.  King,    2   B.  &   Al.    301  ;  i^  Patterson     v.      McCausland,     3 

Lampton  v.  Haggard,  3  T.  B.  Monr.  Bland  (Md.),  69. 
294 


CHAP,  v.] 


NOTORIETY. 


[§  335. 


either  on  his  own  memory,  or  on  works  of  science  or  art,  to 
determine  the  meaning  of  words.i 


1  Supra,  §  282. 

An  authoritative  and  interesting 
exposition  of  the  law  in  this  relation 
is  given  by  ]\Ir.  Justice  Swayne,  in  a 
case  decided  by  the  supreme  court  of 
the  United  States,  in  1876.  Brown 
V.  Piper,  91  U.  S.  (1  Otto)  37. 

The  question  before  the  court  re- 
lated to  the  infringement  of  a  patent 
"for  new  and  improved  method  of 
preserving  fish  and  meats."  The  in- 
vention is  alleged  to  consist  "  in  a 
method  of  preserving  fish  and  other 
articles  in  a  chamber,  and  cooling  the 
latter  by  means  of  a  freezing  mixture, 
so  applied  that  no  communication  shall 
exist  between  the  interior  of  the  pre- 
serving chamber  and  that  of  the  ves- 
sels in  which  the  freezing  mixture  is 
placed."  The  specification  contin- 
ues: "  I  do  not  profess  to  have  in- 
vented the  means  of  artificial  conge- 
lation, nor  to  have  discovered  the  fact 
that  no  decay  takes  place  in  animal 
substances  so  long  as  they  are  kept 
a  few  degrees  below  the  freezing  point 
of  Avater,  but  the  practical  application 
of  them  to  the  art  of  preserving  fish 
and  meats,  as  above  described,  is  a 
new  and  very  valuable  improvement. 
The  apparatus  for  freezing  fish  and 
keeping  them  in  a  frozen  state  may 
be  constructed  in  various  ways  and  of 
difforent  shapes.  The  apparatus  shown 
in  the  drawing,  however,  will  suflice 
to  illustrate  the  principle  and  mode  of 
operation."  The  patent  closes  with 
the  following  claim  :  — 

"Having  described  my  invention, 
what  I  claim  as  new,  and  desire  to 
secure  by  letters-patent,  is,  preserving 
fish  or  other  articles  in  a  close  chamber 
by  means  of  a  freezing  mixture,  having 
no  contact  with  the  atmosphere  of  the 
preserving  chamber,  substantially  as  set 
forth." 


The  court  held  that  the  patent  was 
void  on  its  face,  on  the  ground  that 
the  specifications  contain  no  novelty. 
In  the  course  of  his  opinion  Judge 
Swayne  quotes  as  authority,  Ure's 
Dictionary  of  Arts,  and  Watts'  Dic- 
tionary of  Chemistry  ;  and,  after  say- 
ing that  "  evidence  of  the  state  of  the 
art  is  admissible  in  actions  at  law, 
under  the  general  issue,  without  a 
special  notice,  and  in  equity  cases 
without  any  averment  in  the  answer 
touching  the  subject,"  declares  that 
such  evidence  "consists  of  proof  of 
what  was  old  and  in  general  use  at 
the  time  of  the  alleged  invention  ;  " 
and  is  received  for  three  purposes  and 
none  other :  to  show  what  was  then 
old;  to  distinguish  what  was  new;  and 
to  aid  the  court  in  the  construction  of 
the  patent."  He  then  proceeds  as  fol- 
lows :  — 

"  Of  private  and  special  facts,  in 
trials  in  equity  and  at  law,  the  court 
or  jury,  as  the  case  may  be,  is  bound 
carefully  to  exclude  the  influence  of 
all  previous  knowledge.  But  there 
are  many  things  of  Avhich  judicial 
cognizance  may  be  taken.  '  To  re- 
quire proof  of  every  fact,  as  that  Cal- 
ais is  beyond  the  jurisdiction  of  the 
court,  would  be  utterly  and  absolutely 
absurd.'  Gres.  Ev.  inEq.  201.  Facts 
of  universal  notoriety  need  not  bo 
proved.  See  Taylor's  Ev.  §  l.  note  2. 
Among  the  things  of  which  judicial  no- 
tice is  taken  are :  The  law  of  nations; 
the  general  customs  and  usages  of 
merchants ;  the  notary's  seal ;  things 
which  must  happen  according  to  the 
laws  of  nature;  the  coincidences  of 
the  days  of  the  wi-ek  with  those  of 
the  month  ;  the  meaning  of  wonls  in 
the  vernacular  language  ;  tlie  custom- 
ary abbreviations  of  Christian  names; 
the  accession  of  the  chief  magistrate 

295 


336.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


§  336.  So  judicial  notice  will  be  taken  of  the  familiar  prin- 
ciples of  psychological  laws.  The  usual  effects  of  the 
passions  of  jealousy,  of  avarice,  of  hatred,  and  of  re- 
venge will  be  therefore  taken  for  granted ;  ^  as  well  as 
the  instincts  which  impel  to  the  preservation  and  prop- 
agation of  human  life.^  The  same  recognition  will  be  given  to 
ordinary  and  well  established  physical  laws.-^     The  court,  for  in- 


Ordinary 

psj-cholog- 
ical  and 
phj'sical 
laws. 


to  office  and  his  leaving  it.  In  this 
country  such  notice  is  taken  of  the 
appointment  of  members  of  the  cab- 
inet, the  election  and  resignations  of 
senators,  and  of  the  appointment  of 
marshals  and  sherifis,  but  not  of  their 
deputies.  The  courts  of  the  United 
States  take  judicial  notice  of  the  ports 
and  waters  of  the  United  States  where 
the  tide  ebbs  and  flows;  of  the  boun- 
daries of  the  several  states  and  ju- 
dicial districts,  and  of  the  laws  and 
jurisprudence  of  the  several  states 
in  which  they  exercise  jurisdiction. 
Courts  will  take  notice  of  whatever 
is  generally  known  within  the  limits 
of  their  jurisdiction;  and  if  the  judge's 
memory  is  at  fault,  he  may  refresh  it 
by  resorting  to  any  means  for  that 
purpose  which  he  may  deem  safe  and 
proper.  This  extends  to  such  matters 
of  science  as  are  involved  in  the  cases 
brought  before  him.  See  1  Green- 
leaf's  Evidence,  11  ;  Gresley's  Ev. 
supra;  and  Taylor's  Ev.  §  4,  and 
post. 

"  In  The  Ohio  L.  &  T.  Co.  v.  De- 
bolt,  16  How.  435,  it  was  said  to  be 
'  a  matter  of  public  history,  which 
this  court  cannot  refuse  to  notice,  that 
almost  every  bill  for  the  incorporation 
of  companies,'  of  the  classes  named, 
is  prepared  and  passed  under  the  cir- 
cumstances stated.  In  Hoare  v.  Sil- 
verlock,  12  Ad.  &  Ellis  N.  S.  624,  it 
was  held  that,  where  a  libel  charged 
that  the  friends  of  the  plaintiff'  had 
'realized  the  fable  of  the  frozen 
snake,'  the  court  would  take  notice 

296 


that  the  knowledge  of  that  fable  ex- 
isted generally  in  society.  This  power 
is  to  be  exercised  by  courts  with  cau- 
tion. Care  must  be  taken  that  the 
requisite  notoriety  exists.  Every  rea- 
sonable doubt  upon  the  subject  should 
be  resolved  promptly  in  the  nega- 
tive. 

"  The  pleadings  and  proofs  in  the 
case  under  consideration  are,  silent  as 
to  the  ice-cream  freezer.  But  it  is  a 
thing  in  the  common  knowledge  and 
use  of  the  people  throughout  the  coun- 
try. Notice  and  proof  were,  there- 
fore, unnecessary.  The  statute  re- 
quiring notice  was  not  intended  to 
apply  in  such  cases.  The  court  can 
take  judicial  notice  of  it,  and  give  it 
the  same  effect  as  if  it  had  been  set 
up  as  a  defence  in  the  answer  and  the 
proof  was  plenary.  See  M.  &  A. 
Glue  Cp.  V.  Upton,  6  Patent  OtBce 
Gazette,  843;  and  Needham  u.  Wash- 
burn, 7  Ibid.  651,  both  decided  by  Mr. 
Justice  Clifford  upon  the  circuit.  We 
can  see  no  substantial  diversity  be- 
tween that  apparatus  and  the  alleged 
invention  of  the  appellee.  In  the  for- 
mer, as  in  the  apparatus  of  the  apj^el- 
lee,  '  the  freezing  mixture  '  has  '  no 
contact  with  the  atmosphere '  of  the 
chamber  where  the  work  is  to  be 
done." 

1  See  Whart.  Cr.  Law,  §§  3461-64. 
And  see  infra,  §§  1258-61  et  seq. 

2  Allen  V.  Willard,    67   Penn.   St. 
374. 

3  See  infra,  §  1271. 


CHAP,  v.] 


NOTORIETY. 


[§  336. 


stance,  will  take  notice  that  distilled  liquors  are  intoxicating  ; 
tliougli  it  is  otherwise  as  to  beer  and  wine.^  So  it  will  be  left 
to  a  jury,  without  calling  in  experts,  to  determine,  from  their 
own  knowledge,  whether  vaccination  is  a  proper  precaution  for 
persons  exj)osed  to  small-pox.^ 


^  Com.  V.  Peckham,  2  Gray,  514  ; 
Klare  v.  State,  43  Ind.  483. 

2  "  It  must  be  assumed  that  the  jury 
found,  under  the  instructions  given 
them,  that  the  defendant,  being  the 
owner  of  a  tenement,  knowing  that  it 
was  so  infected  by  the  small-pox  as  to 
be  unfit  for  occupation  and  to  endan- 
ger the  health  and  lives  of  the  occu- 
pants, and  concealing  this  knowledge 
from  the  plaintiff  to  induce  him  to 
hire  it,  leased  it  to  the  plaintiff;  that 
the  plaintiff  and  his  children  took  the 
disease  by  reason  of  the  infection  of 
the  tenement;  that  the  plaintiff  was 
ignorant  of  its  dangerous  condition, 
and  that  no  negligence  of  his  contrib- 
uted to  their  taking  the  disease.  Ujwn 
these  facts  the  defendant  is  guilty  of 
actionable  negligence,  and  is  liable  for 
whatever  injury  the  plaintiff  has  sus- 
tained by  reason  thereof. 

"  In  Sweeny  v.  Old  Colony  &  New- 
port Railroad  Co.  10  Allen,  368,  372, 
the  rule  is  stated  to  be,  that  '  in  order 
to  maintain  an  action  for  an  injury  to 
person  or  property  by  reason  of  negli- 
gence or  want  of  due  care,  there  must 
be  shown  to  exist  some  obligation  or 
duty  towards  the  plaintiff,  which  the 
defendant  has  left  undischarged  or  un-. 
fuHilled.  This  is  the  basis  on  which 
the  cause  of  action  rests.'  Negli- 
gence consists  in  doing  or  omitting  to 
do  an  act  in  violation  of  a  legal  duty 
or  obligation.  In  this  case  the  defend- 
ant knew  that  the  tenement  was  so 
infected  as  to  endanger  the  health  and 
life  of  any  person  who  might  occupy 
it.  It  was  a  plain  duty  of  humanity 
on  his  part  to  inform  the  plaintiff  of 


this  fact,  or  to  refrain  from  leasing  it 
until  he  had  used  proper  means  to 
disinfect  it.  If  the  defendant  had  in- 
vited any  person  to  enter  his  tene- 
ment, knowing  that  there  was  a  dan- 
gerous obstruction  or  pitfall  in  it,  he 
would  be  liable;  the  negligence  was 
no  less  gross  because  the  danger  was 
a  secret  one  which  could  not  be  de- 
tected by  inspection  or  examination. 
Carleton  r.  Franconia  Iron  &  Steel 
Co.  99  Mass.  216;  French  v.  Vining, 
102  Mass.  132. 

"  The  defendant  contends  that  the 
injury  complained  of  is  not  of  such 
a  nature  as  to  give  a  right  of  action, 
'  because  in  diseases  which  are  usually 
designated  as  contagious,  the  connec- 
tion between  the  origin  of  the  disease 
and  the  disease  itself  is  not  a  matter 
cognizable  by  our  senses,'  and  '  the 
source  from  which  and  the  manner  in 
which  contagion  is  communicated  is  too 
uncertain  and  unsusceptible  of  proof 
to  form  the  foundation  for  an  action.' 
In  the  trial  of  cases,  as  in  the  ordinary 
affairs  of  life,  it  is  often  impossible  to 
establish  the  connection  between  cause 
and  effect  with  absolute  certainty. 
But  evidence  which  produces  a  moral 
conviction  is  sullicicnt.  It  is  upon 
such  convictions  that  men  act  in  the 
important  concerns  of  life,  and  no 
greater  certainty  is  reijuired  or  attain- 
able in  the  administration  of  the  law. 
The  defendant's  negligence  was  an 
adequate  cause  of  the  injury  to  the 
plaintiff.  The  evidence  reasonably  sat- 
isfud  the  minds  of  the  jury  that  it  was 
the  oi)eraling  cause,  and  the  difeiidant 
cannot  escape  the  conscciuences  of  his 

297 


§  337.] 


THE  LAW   OF  EVIDENCE. 


[rook  II. 


political 
appoint- 
ments. 


§  337.  The  courts  will  of  their  own  motion  take  notice  of  the 
Leading  political  appointments  of  the  land,  —  so  far  as  concerns 
the  names  and  tenure  of  its  principal  political  agents 
and  their  constitutional  powers.^  This  includes  the 
sheriffs  of  the  several  counties  in  the  same  state.^  So  a  court 
will  take  notice  of  the  officers  to  be  elected  at  the  stated  elec- 
tions in  its  own  state.^  But  the  existence  of  deputy  and  sub- 
ordinate officers,  though  in   the  same  state,  must  be  proved.* 


negligence  upon  the  plea  that  the  con- 
nection between  cause  and  effect  can- 
not be  proved  beyond  possibility  of 
doubt. 

"  The  defendant  also  contends  that 
the  presiding  judge  erred  in  declining 
to  instruct  the  jury  that  if  the  plain- 
tiff Ezra  Minor  did  not  cause  his  chil- 
dren to  be  vaccinated  within  a  reason- 
able time  after  he  came  with  them 
into  the  commonwealth,  the  minor 
plaintiffs  could  not  recover.  Upon 
this  subject  the  judge  instructed  the 
jury  that  it  was  the  duty  of  the  plain- 
tiff" to  'take  all  such  precautions  as  a 
man  of  ordinary  care  and  prudence 
would  take  under  like  circumstances ; ' 
that  it  was  for  the  jury  to  say  whether 
vaccination  was  a  proper  precaution, 
and,  if  so,  whether  he  procured  his 
children  to  be  vaccinated  within  a  rea- 
sonable time  and  by  a  suitable  person. 
These  instructions  were  sufficient.  We 
cannot  say,  as  a  matter  of  law,  that 
under  all  circumstances  vaccination  is 
a  necessary  precaution  to  be  taken  by 
a  person  exposed  to  the  small-pox. 
It  is  a  question  of  fact,  and  was  prop- 
erly left  to  the  jury.  The  argument 
of  the  defendant,  that  the  plaintiff,  in 
neglecting  to  have  his  children  vacci- 
nated, was  guilty  of  a  violation  of  law, 
has  no  foundation  in  the  facts  of  the 
case.  He  caused  them  to  be  vacci- 
nated eight  days  after  he  arrived  in 
this  country,  and  it  does  not  appear 
that    he  was   guilty  of   any  violation 

298 


of  the  statute.     General   Statutes,  c. 
26,  §  27. 

"  Upon  the  whole  case  we  are  of 
opinion,  that,  upon  the  facts  found  by 
the  jury,  the  plaintiffs  are  entitled  to 
recover,  and  that  the  instructions  given 
at  the  trial  were  sufficiently  favorable 
to  the  defendant."  Morton,  J.,  Minor 
V.  Sharon,  112  Mass.  487. 

1  Weber,  Heffter's  ed.  250;  Hol- 
man  v.  Burrow,  2  Ld.  Ray.  794;  Grant 
V.  Bagge,  3  East,  128;  Whaley  v. 
Carlisle,  17  Ir.  Law  R.  792;  R.  v. 
Jones,  2  Camp.  131;  York  R.  R.  u. 
Winans,  17  How.  30;  Chapman  v. 
Herrold,  58  Penn.  St.  106  ;  Bank  of 
Augusta  V.  Earle,  13  Pet.  590  ;  Ben- 
nett V.  State,  Mart.  &  Y.  133;  Hizer 
V.  State,  12  Ind.  330;  State  v.  Wil- 
liams, 5  Wise.  308  ;  Lindsay  v.  Atty. 
Gen.  3  Miss.  568  ;  Fancher  v.  DeMon- 
tegre,  1  Head,  40 ;  Himmelmann  v. 
Hoadley,  44  Cal.  213;  Burnett  v.  Hen- 
derson, 21  Tex.  588;  Dewees  v.  Col- 
orado Co.  32  Tex.  570. 

2  Ingram  v.  State,  27  Ala.  17; 
Thompson  v.  Haskell,  21  111.  215; 
Alexander  c.  Burnham,  18  Wise.  199. 
See  Holman  v.  Burrow,  2  Ld.  Ray. 
794. 

3  State  V.  Minnick,  15  Iowa,  123; 
though  not  so  as  to  other  states.  Tay- 
lor V.  Rennie,  35  Barb.  272. 

*  R.  V.  Jones,  2  Camp.  131  ;  Brough- 
ton  V.  Blackman,  1  D.  Chip.  109 ; 
State  Bank  v.  Curran,  10  Ark.  142; 
Land  v.  Patteson,  IVIinor  (Alab.),  14. 


CHAP,  v.] 


NOTORIETY. 


[§  338. 


It  is  otherwise  as  to  such  officers  of  the  county,  where  the  court 
sits,  as  come  in  official  connection  with  the  court.^ 

§  338.  A  court  will  also  take  judicial  notice  of  the  leading  pub- 
lic events  of  its  own  country  ;  ^  and  will  permit  works  of 

.    .  .  Leading 

history  (though  not  by  living  authors)  to  be  cited  to  public 
this  effect.^  Thus  it  has  been  held  that  a  court  will  take 
notice  of  an  ordinance  of  its  own  state  abolishing  slavery  ;  *  of 
the  fact  that  a  certain  period  was  one  of  great  business  distress  ;  ^ 
of  leading  public  proclamations ;  ^  of  the  periods  at  which  elec- 
tions are  held  ;  ^  of  the  division  of  the  Methodist  Episcopal  Church 
in  1844,  into  two  churches,  north  and  south  ;  ^  of  the  suspension 
of  specie  payments  ;  ^  of  the  existence  of  war  ;  '^^  of  the  nature  of 
Confederate  currency  during  the  war  ;  ^^  of  the  nature  and  limits 
of  blockading  during  the  civil  war  ;  ^^  of  the  closing  of  the  courts 
in  a  particular  county  through  civil  war,  and  the  substitution  of 
military  authority  ;  ^^  of  the  cessation  of  war.^^  But  notice  will 
not  be  j  udicially  taken  of  precise  details  of  only  local  interest ;  ^^  as, 


1  Dyer  v.  Flint,  21  111.  80  ;  Gra- 
ham V.  Anderson,  42  111.  514  ;  Wether 
U.Dunn,  32  Cal.  106;  Templeton  v. 
Morcran,  16  La.  An.  438. 

2  Weber,  Heffter's  ed.  250 ;  Holman 
V.  Burrow,  2  Ld.  Ray.  791  ;  R.  v. 
Pringle,  2  M.  &  Rob.  276;  Bolder  v. 
Huntingfield,  11  Ves.  292;  R.  u.  De 
Berenger,  3  M.  &  S.  67;  U.  S.  v. 
Coin,  1  Woolw.  217;  Ohio  L.  &  T. 
Co.  V.  Debolt,  16  How.  416  ;  Bank  of 
Augusta  I'.  Earle,  13  Pet.  590;  Key- 
ser  V.  Coc,  37  Conn.  597;  Henthorn 
V.  Shepherd,  1  Blackf.  159  ;  Hart  v. 
Bodley,  Hard.  (Ky.)  98  ;  Bell  v.  Bar- 
net,  2  J.  J.  Marsh.  516;  Lewis  v.  Har- 
ris, 31  Ala.  689  ;  Ferdinand  v.  State, 
39  Ala.  706;  Buford  r.  Tucker,  44 
Ala.  89;  Smith  r.  Speed,  50  Ala.  276; 
Ashley  v.  Martin,  50  Ala.  537;  Lind- 
sey  V.  Atty.  Gen.  33  Miss.  508  ;  Payne 
V.  Trea<lwell,  16  Cal.  220. 

8  Morris  i'.  Ilarnier,  7  Peters,  554. 
See  infra,  §  664;  and  see  McKinnon 
V.  Bliss,  21  N.  Y.  206. 

*  Ferdinand  v.  State,  39  Ala.  706. 


6  Ashley  v.  Martin,  50  Ala.  537. 
See  infra,  §  948. 

6  Taylor  v.  Barclay,  2  Sim.  213. 

■^  Ellis  V.  Reddiu,  12  Kans.  306. 

®  Humphrey  v.  Burnside,  4  Bush, 
215. 

9  U.  S.v.  Coin,  1  Woolw.  217. 

w  R.  V.  De  Berenger,  3M.  &  S.  67; 
U.  S.  V.  Ogden,  Trial  of  Smith  &  Og- 
den,  287  ;  Jones  v.  Walker,  2  Paine, 
R.  697;  Cuyler  v.  Ferrill,  1  Abl).  U. 
S.  169;  Rice  v.  Shook,  27  Ark.  137. 

"  Buford  U.Tucker,  44  Ala.  89.  In- 
fra, §  948. 

12  The  :\rersev  Bl.  Pr.  Cas.  187;  The 
William  H.  Northrop,  Bl.  Pr.  Cas.  2;{5. 

1*  Killebrew  v.  Murj)hy,  3  Heisk. 
546  ;  Gates  v.  Johnson  Co.  36  Tex. 
144. 

"  U.  S.  V.  Bales  of  Cotton,  10  Int. 
Rev.  Ilec.  52. 

"  MoKinnon  v.  Bliss,  21  N.  Y.  206  ; 
Morris  r.  Edwards,  1  Ohio,  189.  See 
Bishop  1-.  Jones,  28  Tex.  291;  Gregory 
t'.  Bau^di,  4  Kan.l.  (Va.)  611. 

In  The  Minne,  Bl.  Pr.  Cas.  333,  the 
299 


§  339.] 


THE  LAW   OF   EVIDENCE. 


[book  ii. 


§339. 


Leading 
domestic 
geof^raph- 
ical  feat- 
ures. 


for  instance,  the  exact  local  limit  of  the  depreciation  of  Confeder- 
ate currency  ;  ^  or  the  position  of  the  armies  at  particular  periods  of 
the  war  ;  ^  or  the  specific  orders  issued  by  a  military  commander.^ 
A  court  is  bound  to  take  judicial  notice  of  the  leading 
geographical  features  of  the  land,  the  minuteness  of  the 
knowledge  so  expected  being  in  inverse  proportion  to 
distance.^  Thus  a  court  sitting  in  a  particular  city  is 
bound  to  know  the  general  scenery  of  such  city,  and  its 
division  into  streets  and  wards  ;  ^  the  courts  of  a  particular  state 
to  know  the  boundaries  of  the  state,  and  its  division  into  towns 
and  counties,  and  the  limits  of  such  divisions  ;  ^  and  of  its  judi- 
cial districts  ;  "*  the  position  of  lesfding  cities  and  villages  in  such 
state  ;  ^  and  the  natural  boundaries  of  the  state.^  So  it  has 
been  held  in  Wisconsin  that  the  court  would  take  notice  that 
Prairie  du  Chien  and  McGregor  are  separated  only  by  the  Missis- 
sippi River  ;  and  that  in  the  winter,  when  the  river  is  frozen, 
these  places  are  so  contiguous  as  to  make  prices  in  them  sub- 
stantially the  samc^*^  So  the  court  of  a  state  is  expected  to  know 
judicially  whether  certain  rivers  in  such  state  are  navigable  ;^^ 


court  went  so  far  as  to  take  judicial 
notice  (without  proof)  that  a  particu- 
lar shipper  at  Nassau  was  a  notorious 
blockade  runner. 

1  Modawell  i;.  Holmes,  40  Ala.  391. 

2  Kelley  v.  Story,  6  Heisk.  202. 

3  Burke  v.  Miltenberger,  19  Wall. 
519. 

*  See  U.  S.  V.  La  Vengeance,  3  Dal. 
297  ;  Peyroux  v.  Howard,  7  Pet.  342. 

^  Montgomery  v.  Plank  Road,  31 
Ala.  76.  See  Money  v.  Turnipseed, 
50  Ala.  499. 

^  Harris  v.  O'Loghlin,  5  Irish  R. 
(Eq.)  514  ;  Whyte  v.  Rose,  4  P.  &  D. 
199;  3  Q.  B.  495;  Deybel's  case,  4  B. 
&  A.  242  ;  R.  V.  Isle  of  Ely,  15  Q.  B. 
827;  R.  V.  Maurice,  16  Q.  B.  908; 
Lyell  V.  Lapeer  Co.  6  McLean,  446; 
U'.  S.  V.  Johnson,  2  Sawyer,  482  ; 
Buchanan  v.  Whitham,  36  Ind.  257  ; 
Goodwin  v.  Appleton,  22  Me.  453; 
Ham  V.  Ham,  39  Me.  363 ;  Keyser 
V.  Coe,  37  Conn.  597;  Winnipiseogee 

300 


Lake  Co.  v.  Young,  40  N.  H.  420; 
State  V.  Powers,  25  Conn.  48;  Com- 
missioners r.  Spitler,  13  Ind.  235; 
Buckinghouse  v.  Gregg,  19  Ind.  401; 
Hinckley  v.  Beckwith,  23  Wise.  328; 
Wright  V.  Hawkins,  28  Tex.  452; 
Brown  v.  Elms,  10  Humph.  135;  King 
V.  Kent,  29  Ala.  542. 

'  People  V.  Robinson,  17  Cal.  363. 

8  Martin  v.  Martin,  51  Me.  366; 
Vanderwerker  v.  People,  5  Wend. 
530  ;  State  v.  Tootle,  2  Barring.  541 ; 
Indianapolis  R.  R.  v.  Case,  15  Ind.  42; 
Indianapolis  R.  R.  v.  Stephens,  28 
Ind.  429;  Harding  v.  Strong,  42  111. 
148 ;  Smitha  v.  Flournoy,  47  Ala. 
345 ;  Montgomery  v.  Plank  Road,  31 
Ala.  76;  though  see  Kearney  r.  King, 
2  B.  &  A.  301. 

9  Price  V.  Page,  24  ]\Io.  65  ;  Bell  v. 
Barnet,  2  J.  J.  Marsh.  516. 

1"  Siegbert  v.  Stiles,  39  Wise  533. 
^^  Neaderhouser  v.    State,   28  Ind. 
257. 


CHAP,  v.]  NOTORIETY.  [§  340. 

and  the  general  characteristics  of  the  rivers  traversing  such 
state  ;  ^  and  of  domestic  tide  waters  in  general.^  But  the  dis- 
tance from  each  other  of  places  in  the  same  county,  and  their 
actual  boundaries,  if  essential,  must  be  proved  ;  ^  and  so  must 
such  subdivisions  of  counties  as  are  established  by  municipal 
ordinance  ;  *  and  so  must  the  time  taken  to  travel  f i-om  place  to 
place  ;^  nor  will  judicial  notice  be  taken  of  the  fact  that  partic- 
ular streets  are  in  particular  cities  or  counties,  or  in  particular 
vicinities.^ 

§  340.  So  a  court  is  bound  to  take  notice  of  the  leading  geo- 
graphical features  of  foreisrn  lands  ;  rememberincc  the   ^     ,. 

.  11.  1  .      1    .        Leading 

caution  already   given,  that  the  exactness  required  in    foreitrn 

such  notice  diminishes  with  distance."     It  is  said,  how-    icai  f eat- 
ever,  that  the  courts  of  one  of  the  United  States  will 
not  take  judicial  notice  of  the  existence  of  the  cities  of  another 
state ;  ^  though  this  may  be  doubted,  so  far   as   concerns  well 
known   centres   of    business.^     Courts,   also,    may    take   judicial 
notice  of  the  tidal  character  of  rivers  in  foreign  hinds. ^"^ 

1  Cash  V.   Clark    Co.    7    Ind.   227;  Grant  v.  Moser,  5  M.  &  Gr.  129;  Kir- 
Mossman    v.    Forrest,    27    Ind.    233;  by  y.  Hickson,  1  L.,  M.  &  P.  3G4. 
Cummings  v.  Stone,  13  Mich.  70.  .In  Brune  v.  Thompson,  2  Q.  B.  789, 

2  The   Jeflferson,    10    Wheat.    428;  the  court  went  to  the  absurd  extreme 
Peyroux  v.  Howard,  7  Pet.  342.  of  nonsuiting  the  phxintitl'  because  he 

*  Goodwin  v.  Appleton,  22  Me.  433;     did  not  prove  that  the  Tower  of  Lon- 
Fazakerley  v.  Wiltshire,   1    Str.  4G9 ;     don  was  in  the  city  of  London. 

R.v.  Burridge,  3  P.  Wms.  497;  Dey-  "'  See    Richardson    v.    Williams,    2 

bel'scase,   4   B.  &   A.   242;  Kirby  y.  Porter  (Ala.),  239. 

Hickson,  1  L.,  M.  &  P.  364.  »  Riggin    r.    Collier,    6    Mo.    5G8  ; 

*  Bragg  V.  Rush  Co.  34  Ind.  406.  Woodward  r.   R.   R.  21    Wise.    309; 
s  Rice  V.  Montgomery,  4  Biss.  75;  AVhitlock  v.  Castro,  22  Te.x.  108. 

though  see  Hipes  v.  Cochrane,  13  Ind.  °  Rice  c.  Montgomery,  4  Biss.  7.3. 

175.     In  Oppenheim  V.  Wolf,  3  Sandf.  i"  Whitney  v.  Gauche,  II   La.   An. 

Ch.  571,  it  was  held  that  the  length  432;    The    Peterhoff,   Blatch.    Prize 

of  steam  voyages  across  the  Atlantic  Cas.  463,  in   which   the  court   (admi- 

would  be  judicially  noticed.  ralty)  went  so  far  as  to  take  notice  of 

«  R.  V.  Simpson,  2   Ld.  Ray.    1379  ;  a  bar  in  a  foreign  river  wliich  vessels 

of  a  specilic  draught  could  not  cross. 

301 


CHAPTER   VI. 


INSPECTION. 


Inspection  is  a  substitution  of  the  eye  for  the 
ear  in  the  reception  of  evidence,  §  345. 

Is  valuable  when  an  ingredient  of  circum- 
stantial evidence,  §  346. 


Not  to  be  accepted  when  better  evidence  is 

to  be  had,  §  347. 
Inspection  of    documents    under  order    of 

the  court,  infra,  §  745. 


§  345.  Inspection  is  to  be  regarded  rather  as  a  means  of  dis- 
inspection  peiisiiig  With  evidence,  than  as  evidence  itself.  That 
tutefor*''  wliich  the  court  or  jiu-y  sees  need  not  be  proved.  The 
proof.  appearance  of  a  defendant,  for  instance,  so  as  to  make 

up  a  basis  of  comparison  in  cases  of  identity,  need  not  be  proved 
by  testimony,  when  the  defendant  appears  in  person  at  the  trial. 
By  the  Romans  this  method  of  proof  is  frequently  noticed.^  By 
the  glossarists  the  evidentia  facti  is  spoken  of  as  a  species  pro- 
hationis  adeo  clara,  ut  nihil  magis^  nee  judex  cdiud  quam  illam 
requirat?  Under  the  title  "  probatio  per  aspectum,"  it  is  men- 
tioned as  one  of  the  most  effective  modes  of  conviction.^  Nor  is 
it  only  the  immediate  object  presented  to  the  eye  that  is  thus 
proved.  Inferences  naturally  springing  from  such  appearances 
are  to  be  accepted;  age,  bodily  strength,  being  thus  inferred.* 
Yet  the  inference  is  not  to  be  regarded  as  certain,  7iani  aspectus 
facile  deeipitJ'  A  footprint,  inspected  by  the  judge,  is  an  in- 
dicium.^ Whether  the  court,  at  its  own  motion,  could  direct  an 
inspection,  or,  as  we  call  it,  a  view,  was  much  discussed,  and 
by  the  later  practice,  conceded.'^    Inspection,  it  should  be  remem- 

1  See  Cic.  top.  c.  2,  §  29 ;  L.  32  de 
minor,  iv.  4 ;  L.  3.  Cod.  fin.  reg.  iii. 
39;  Endemann,  82. 

2  See  Masc.  I.  qu.  8. 
2  Durant.  II.  2,  de  prob.  §  4,  nr.  9, 

who   extends   proof  by  inspection  to 
include   the   logical  consequences    of 

inspection e.  g.  ex  eo  quod  cleri- 

cus  parvam  habet  filiam,  probatur  non 
diu  continuisse.     See  Endemann,  83. 

302 


■*  Alciat.  De  praes.  ii.  14,  nr.  S; 
Menoch.  De  praes.  ii.  50,  nr.  38,  39. 

s  Bart.  Const.  I.  92,  nr.  3;  Menoch. 
II.  51,  nr.  61;  Endemann,  83. 

*  Masc.  I.  c.  nr.  21. 

'  See  Endemann,  84;  Schmid,  p. 
309,  note  5;  Seuffer,  Archiv.  IV.  nr. 


CHAP.*  VI.]  INSPECTION.  [§  346. 

bered,  includes  perception  by  any  of  the  senses  :  quae  cerni  tan- 
give  possunt;^  though  it  was  intimated,  as  a  speculative  opinion, 
oculis  major  fides,  quam  auribus  habenda.^ 

§  346.  Where  a  thing  is  offered  for  the  inspection  of  the  court, 
it  is  obvious  that  in  most  cases  this  is  primary  evidence   ^^^     .. 
of   such  thing ;  and   proof  by   inspection   is  therefore   valuable  as 

.  an  ingre- 

received  in  preference  to  pictures  or  oral  descriptions,  dientofcir- 
whenever  it  is  material  to  the  jury  to  know  what  the  tiai  evi- 
thing  is.^  The  most  common  illustration  of  this  prin- 
ciple is  to  be  found  in  cases  where  juries  are  taken  to  view  the 
scene  where  the  events  of  the  litigation  occurred.*  So  all  in- 
struments by  which  an  offence  is  alleged  to  have  been  committed; 
all  clothes  of  parties  concerned,  from  which  inferences  may  be 
drawn  ;  all  materials  in  any  way  part  of  the  res  gestae  may  be 
produced  at  the  trial  of  the  case.^  In  questions  of  forgery,  in 
particular,  the  production  of  the  paper  alleged  to  have  been 
forged  is  an  essential  without  which  we  can  scarcely  conceive  of 
a  case  proceeding.^  Injury  to  the  person  may  be  so  proved. 
Thus  in  an  action  to  recover  damages  for  an  injury  to  a  limb, 
the  injured  limb  may  be  exhibited  on  trial,  to  be  inspected  by 
the  court  and  jury,  while  the  surgeon  who  was  employed  to  set  it 
testifies  as  to  the  injury."  So  in  a  North  Carolina  case,^  the  de- 
fendant, who  was  charged  with  murder,  set  up  as  a  defence  that 
the  deceased  was  accidentally  burned  to  death,  and  that  she  (the 
defendant)  burned  her  hands  in  trying  to  extinguish  the  fire. 
She  was  ordered  by  the  coroner  to  show  her  hands,  which  ex- 

1  Cic.  top.  c.  2,  §  27.  L.  R.  1  C.  C.  378;  State  v.  Bertin,  24 

2  Ilercul.  De  prob.  neg.  nr.  247;  La.  An.  46.  Under  the  En<^lisli  stat- 
Endemann,  84.  As  to  force  of  proof  utes,  sec  Stones  v.  ]\Icnhem,  2  Ex. 
by  inspection,  see  Ingram  v.  Plasket,  R.  382;  Morley  v.  Gaz.  Co.  2  F.  & 
3  Blackf.  450.  F.  373. 

8  See  Ingram  v.  Plasket,  3  Blackf.         ^  g^e  Wliart.  C.  L.  §  8468  et  seq. 

450.     As  to  inspection  of  documents  See,  also,  La  Beau  v.  People,  34  N.  Y. 

by  jury,  see  Howell  v.  Ins.  Co.  6  Biss.  223  ;  People  r.  Gonzales,  35  N.  Y.  49; 

436.     See,  however,  supra,  §  81.  Gardner  v.    People,    6   Park.    C.    R. 

*  See  Whart.  Cr.  L.  §  31C0;  Mos-  155.     As  to  notice  to  produce  a  dog, 

sam   V.    Ivy,    10    How.    St.   Tr.    5G2;  see  Lewis  i\  Hartley,  7  C.  &  P.  405. 
State  V.  Knapp,  45  N.  H.  148;  lluloff         »  See  infra,  §§  705,  711. 
V.  People,  18  N.  Y.  179  ;  Eastward  v.         ''  Mulhado  v.  K.  R.  30  N.  Y.  370. 
People,  3  Parker  C.  R.  25  ;  Chute  v.         »  State  v.  Garrett,  71  N.  C.  85. 
State,  19  Minn.  271  ;    R.   v.  Martin, 

303 


§  347.] 


THE   LAW   OF    EVIDENCE. 


[BCtOK  II. 


hibited  no  trace  of  burning.  Evidence  of  this  was  received  on 
trial.  When  the  issue  is  infancy,  on  an  indictment,  the  court 
and  jury  may  decide  by  inspection.^  On  an  issue  of  bastardy, 
the  jury  may  judge  of  likeness  by  inspection  ;  ^  and  so  on  an 
issue  of  adultery,  for  the  purpose  of  connecting  a  child  with  a 
putative  father.^  It  is  inadmissible,  however,  to  resort,  in  such 
issues,  to  the  inspection  of  pictures.^  On  an  issue  of  pregnancy, 
a  jury  of  matrons  is  empanelled  to  decide  the  issue  by  inspection.^ 
When  comparison  of  hands  is  resorted  to,  the  court,  if  not  the 
jury,  inspects  the  document  as  a  mode  of  determining  genuine- 
ness.^ Animals  are  sometimes  brought  into  court  when  their 
identity  or  character  is  in  controversy.' 

§  347.  When,  however,  more  exact  proof  can  be  produced, 
inspection  does  not  afford  a  sufficient  basis  on  which 
to  rest  a  judgment.  Thus  in  Indiana,  where  under  a 
statute  it  was  necessary  to  prove  that  the  defendant 
dence  could  was  fourteen  years  old,  it  was  held  that  in  a  case  open 
to  doubt,  this  proof  must  be,  if  possible,  supplied  by 
witnesses  or  records,  and  cannot  be  determined  by  inspection 


Inspection 
not  to  be 
accepted 
when  far 
better  evi- 


1  State  V.  Arnold,  13  Ired.  L.  184. 

2  State  V.  Woodruff,  67  N.  C.  89. 

2  Stumm  V.  Hummel,  39  Iowa,  478. 

*  Beers  v.  Jackman,  103  Mass.  192. 

^  Baynton's  case,  .14  How.  St.  Tr. 
630  ;  R.  V.  Wycherly,  8  C.  &  P. 
262. 

^  Infra,  §  711  et  seq. 

''  Line  v.  Tayler,  3  F.  &  F.  731  ; 
Wood  V.  Peel,  cited  Taylor's  Ev.  § 
500,  Lewis  v.  Hartley,  7  C.  &  P.  405. 
In  an  English  case  passing  through  the 
English  daily  papers  in  the  spring  of 
1876  :  "Mrs.  Priscilla  Wolfe,  a  widow 
lady  of  independent  means,  residing 
at  Kilsby,  near  Rugby,  sued  Richard 
Jones,  butcher,  of  the  same  place, 
for  £5  damages,  for  illegally  killing  a 
cockatoo  parrot  belonging  to  the  plain- 
tiff. The  defence  was  that  the  de- 
fendant shot  the  cockatoo  mistaking 
it  for  an  owl.  The  fellow-bird  of  the 
deceased  cockatoo  was  brought  into 
court,  and  afforded  great  amusement 

304 


by  strongly  recommending  the  parties 
to  '  Shake  hands,'  '  Shut  up,'  and  ask- 
ing for  '  sugar.'  "  In  Brown  v.  Foster, 
113  Mass.  136,  the  action  was  by  a 
tailor  to  recover  the  price  of  a  suit  of 
clothes  which  he  had  made,  and  guar- 
anteed to  be  "  satisfactory."  The  de- 
fendant pronounced  them  unsatisfac- 
tory, and  returned  them.  They  were 
produced  in  court,  and  at  the  plain- 
tiff's request  the  defendant  put  them 
on  and  exhibited  them  to  the  jury. 
On  the  part  of  the  plaintiff  it  was 
claimed  that  they  needed  only  a  few 
trifling  alterations,  which  he  was  will- 
ing to  make,  but  that  the  defendant 
had  refused  to  allow  them.  Evidence 
was  received  of  a  custom  among  tai- 
lors of  having  garments  tried  on  after 
they  were  finished,  and  then  making 
necessary  alterations.  A  new  trial 
was  granted  on  account  of  the  recep- 
tion of  this  evidence. 


CHAP.  VI.] 


INSPECTION. 


[§  347. 


alone.i  Bat  it  is  one  of  the  necessary  incidents  of  the  bringing 
into  court  of  the  instruments  by  which  an  act  is  alleged  to  have 
been  done,  tliat  such  instruments  should  be  tested  in  open  court. 
It  is  only  when  this  is  done  by  the  jur}^  after  retiring,  when  the 
parties  have  no  opportunity  of  revising  the  process,  that  objec- 
tion can  be  made.  When  the  process  is  conducted  openly,  as 
part  of  the  trial  of  the  case,  it  is  a  valuable  auxiliary  in  the  dis- 
covery of  truth. 2 

1  Stephenson  v.  State,  28  Ind.  272.  sometimes     likely    to     be    influenced 

In  a  suit  for  injury  to  chattels,  the  thereby,   although    such    incompetent 

plaintiff,  it  has  been  ruled  in  Mary-  evidence    may    be    afterward     with- 

land,   is  not  entitled  to  produce  the  drawn." 

chattel  in  court  in  order  to  prove  the  Experiments  not  applicable  to  con- 
injury  by  inspection.  The  injury,  it  ditions  existing  on  the  trial  cannot  be 
has  been  said,  must  be  proved  by  wit-  proved  by  experts.  Hawks  i:  Charle- 
nesses.  Jacobs  v.  Davis,  34  Md.  204.  mont,  110  Mass.  110;  Com.  v.  Piper, 
So  it  is  said  in  North  Carolina  that  120  Mass.  185. 

the  qualities  of  a  stallion  for  foal-get-  In   patent   cases,   it    should   be   re- 
ting  cannot  be  judged  by  inspection,  membered,    experiments    before    the 
but   may    be   proved    by   reputation,  jury  are  constantly  resorted  to. 
McMillan  v.  Davis,  66  N.  C.  539.  Whether   a   witness  can  be  called 

In  Tennessee,  in  a  case  reported  in  upon  to  write  his  name  in  court,  on 
1860,  Stokes  v.  State,  Alb.  L.  J.  May  questions  of  identity  of  hands,  is  else- 
6,  1876,  where  the  prisoner  was  in-  where  considered.  Infra,  §  706. 
dieted  for  the  murder  of  a  female  by  ^  The  late  Rev.  F.  W.  Robertson, 
hanging,  the  evidence  was,  that,  near  in  a  letter  printed  by  his  biographer 
the  place  where  she  was  hanged,  a  (Life  and  Letters  of  F.  W.  Robertson, 
track  was  found  in  the  mud,  made  by  ii.  139),  gives  the  following  vivid 
a  bare  foot.  The  prosecution  sought  sketch  of  a  trial  before  Sir  John  Ji-r- 
to  show  that  this  track  was  made  by  vis:  "  One  was  a  very  curious  one,  in 
the  foot  of  the  prisoner,  and  brought  which  a  young  man  of  large  j)ropcrty 
a  pan  of  mud  into  court  and  placed  had  been  fleeced  by  a  gang  of  black- 
it  before  the  jury  ;  it  being  proved  legs  on  the  turf,  and  at  cards.  Noth- 
that  the  mud  was  about  as  soft  as  the  ing  could  exceed  the  masterly  way  in 
mud  where  the  track  was  seen.  The  which  Sir  John  Jervis  untwined  the 
prisoner  was  then  called  upon  by  the  web  of  sophistries  with  which  a  very 
prosecuting  attorney  to  put  his  loot  in  clever  counsel  had  bewildered  the 
the  mud,  but  refused.  The  defendant  jury.  A  private  notebook,  with  ini- 
was  convicted,  but  the  court  on  ai)peal  tials  for  names,  and  complicated  gam- 
reversed  the  (inding,  on  the  ground  bling  accounts,  was  found  on  one  of 
that  the  circumstance  had  an  influence  the  prisoners.  No  one  seemed  to  l)o 
on  the  jury  prejudicial  to  the  prisoner,  able  to  make  head  or  tail  of  it.  The 
The  court  said:  "Such  testimony  chief  justice  looked  it  over  and  most 
should  be  promptly  rejected,  and  not  ingeniously  explained  it  all  to  the  jur\ . 
permitted  to  go  to  the  jury  at  all,  for  Then  there  was  a  pack  of  cards  whii  li 
jurors  with  miiuls  untrained  to  legal  had  been  pronoimced  by  the  London 
investigations  and  discriminations  are  defectives  to  be  a  perfectly  fair  pack. 

VOL.  1.              20  305 


§  347.] 


THE   LAW    OF   EVIDENCE. 


[book  II. 


They  were  examined  in  court ;  every 
one  thouiibt  them  to  be  so,  and  no 
stress  Wiva  hiid  upon  the  circumstance. 
However,  they  were  handed  to  the 
chief  justice.  I  saw  his  keen  eye 
glance  very  inquiringly  over  them 
while  the  evidence  was  going  on. 
However,  he  said  nothing,  and  quietly 
put  them  aside.  When  the  trial  was 
over,  and  the  charge  began,  he  went 
over  all  the  circumstances  till  he  got 
to  the  objects  found  upon  the  prison- 
ers. '  Gentlemen,'  said  he,  '  I  will 
engage  to  tell  you,  without  looking  at 
the  faces,  the  name  of  every  card  upon 
this  pack !  '  A  strong  exclamation  of 
surprise  went  through  the  court.  The 
prisoners  looked  aghast.  He  then 
pointed  out  that  on  the  backs,  which 
were  figured  with  wreaths  and  flowers 
in   doited  lines  all   over,  there  was   a 

306 


small  Hower  in  the  right-hand        .;. 
corner  of  each  like  this: 

"  The  number  of  dots  in  this  flower 
was  the  same  on  all  the  kings,  and  so 
on,  in  every  card  through  the  pack. 
A  knave  would  be  perhaps  marked 
thus:  .  •  .  •  .  •  An  ace  thus:  •  .  • 
and  so  on;  the  difference  being  so 
slight,  and  the  flowers  on  the  back  so 
many,  that  even  if  you  had  been  told 
the  general  principle,  it  would  have 
taken  a  considerable  time  to  find  out 
which  was  the  particular  flower  which 
differed.  He  told  me  afterwards  that 
he  recollected  a  similar  expedient  in 
Lord  De  Ros's  case,  and  therefore  set 
to  work  to  discover  the  trick.  But  he 
did  it  while  the  evidence  was  going 
on,  which  he  himself  had  to  take  down 
in  writins." 


CHAPTER  VII. 


BURDEN  OF  PROOF. 


Prevalent  theory  is  that  burden  of  proof  is 
on  affirmative,  §  353. 

True  view  is  that  burden  is  on  party  under- 
taking to  prove  a  point,  §  354. 

Roman  law  is  to  this  effect,  §  355. 

Negatives  are  susceptible  of  proof,  §  35G. 

Burden  is  properly  on  actor,  §  357. 

Party  who  sets  up  another's  tort  must  prove 
it,"§  358. 

So  as  to  negligence,  §  359. 

So  in  suit  against  railroad  iovfirbuj,  §  3G0. 

Contributor}'  negligence  to  be  proved  by  de- 
fence, §  301. 

In  a  suit  of  non-performance  of  contract, 
plaintiff  must  prove  non -performance, 
§  302. 

Rule  altered  when  plaintiff  sues  in  tort, 
§  3G3. 


In  a  contract  against  bailees,  it  is  sufHcient 

to  prove  bailment,  §  364. 
Burden  of  proving  casus  is  on  party  setting 

it  up,  §  3G5. 
Burden  is  on  party  assailing  good  faith  or 

legality,  §  366. 
Burden  is  on  party  to  prove  that  which  it  is 

his  duty  to  prove,  §  3G7. 
License  to  be  proved  to  whom  such  proof  ii" 

essential,  §  368. 
Burden  of  proving  formalities  is  on  him  to 

whom  it  is  essential,  §  369. 
Imjiortance   of    question   as    to   burden,    § 

370. 
Court  may  instruct   jury   that  a   presump- 
tion of  fact  makes  a  prima  facie   case, 

§  371. 


§  353.  In  the  ti-ial  of  a  judicial  issue,  the  first  point  to  be  de- 
termined is,  by  whom  is  the  evidence  in  the  case  to  be  offered, 
and  to  Avliat  extent  must  this  evidence  proceed.  Various  the- 
ories on  this  point  have  been  advanced.  That  which  in  Eng- 
land is  generally  accepted  is,  that  on  the  party  maintaining  the 
affirmative  the  burden  is  always  imposed.  Among  the  most 
authoritative  exponents  of  this  view  is  Mr.  Best,  in  his 
treatise  on  Evidence.^  "  The  general  rule,"  he  de- 
clares, "  is,  that  the  burden  of  proof  lies  on  the  party 
who  asserts  the  affirmative  of  the  issue,  or  que.stion  in 
dispute,  —  according  to  tlie  maxim,  Ei  incumhit  jiro- 
hatio  qui  dlcit,  non  qui  negat ;  and  to  this  effect  he  cites  Mr. 
Starkie  and  Mr.  Phillipps,  sustaining  his  views  by  a  copious 
exposition.^      A    distinguished    German    jurist    and    statesman. 

1  Best's  Evidence,  5tli  cd.  3G9.  Tick.  39;  Costigan  r.  R.  R.  2  Dcnio, 

2  See,  to  same  effect,  Phelps  r.  Hart-     609;  riisey  v.  Wn;j;ht,  31    Penn.   St. 
well,  1  Mass.  71;  Phillips  v.  Ford,  9     387;    Nush  r.  Hall,  l   Ind.  444  ;   Mc- 


Prevalent 
tliourv  is 
that  the 
burden  i.-* 
on  the  nf- 
lirmalive. 


§  354.]  THE  LAW  OF  KVIDENCE.  [BOOK  II. 

Bcthman-Hollwog,  has  given  his  adhesion  to  tlie  same  view.^ 
The  question  of  the  burden  of  proof,  he  argues,  is  not  confined  to 
merely  juridical  relations.  We  will  not  err,  therefore,  if  in  such 
a  discussion  we  turn  for  illustration  to  the  analogies  of  ordinary 
life.  IIow  is  it,  for  instance,  in  a  controversy  as  to  a  historical 
fact,  or  a  natural  phenomenon?  When  a  third  person  asserts 
such  fact  or  phenomenon,  on  such  person,  we  declare,  lies  the 
burden  of  proof,  if  the  assertion  be  denied.  We  refuse  assent 
until  proof  of  the  truth  of  the  assertion  is  brought.  This,  how- 
ever, is  identical  with  the  rule  that  he  who  affirms,  not  he  who 
denies,  must  prove.  It  is  true  that  this  is  not  applicable  to 
many  cases ;  as,  for  instance,  where  there  is  a  double  hypothesis, 
of  which  the  first  party  asserts  one  alternative  and  the  second 
party  asserts  the  other  alternative.  But  by  such  case,  as  on 
neither  party  lies  a  burden  of  proof,  the  rule  as  above  given  is 
not  affected.  In  the  relations  of  common  life,  therefore,  we  apply 
the  rule,  Affirmanti  incumhit  prohatio.,  non  neganti.  It  is  true,  he 
proceeds  to  say,  that  we  dispense  practically  with  this  rule  in 
common  life  in  cases  where  there  is  not  a  direct  issue  of  affirma- 
tion or  denial.  But  this  is  not  the  case  in  civil  process,  where 
such  an  issue  always  exists,  for  in  such  case  one  party  necessarily 
claims  a  right  which  another  resists.  Whoever  claims  a  right, 
affirms  such  right,  and  must  prove  it,  for  the  reason  that  it  can- 
not be  admitted  by  the  judge  without  proof. 

§  354.  But  to  this  it  has  been  well  replied,^  that  the  very  ex- 
ception made  by  Bethman-Hollweg  shows  that  the  rule  he  advo- 
cates can  have  only  a  limited  application  to  judicial  investiga- 
tions.    He  admits  that  the  rule  does  not  apply  when  there  are 
two  or  more  conflicting  interests  :  but  rare  are  the  liti- 

Correct  .  ,  .   f 

view  is  that   gated    issucs  \\\  which  two  or  more  interests  do    not 
conflict.     Nor  is  this  all.     In  many  cases  each  party 


IS  on  a 


dertakhi'r     Whites,  with   an    affirmation    on    his    part  of   his    own 

to  prove  a     rights,  a  denial  of  the  rights  of  his  opponent ;  and  the 

affirmation  and  denial  are  so  blended  as  to  be  incapable 


Clure  V.  Pursell,  6  Ind.  330;  Steven-  66.      So,  also,  Greenleaf  s  Ev.  §  74, 

son  V.   Marony,  29  111.  532;  Grims  v.  and  Taylor's  Ev.  §837. 

Tidmore,  8  Ala.  746;  Kyle  r.  Calmes,  ^  Versuche,  p.  337. 

1  How.  (Miss.)  121 ;  Thompson  v.  Lee,  ^  Heffter,  Appendix  to  Weber,  259. 

8  Cal.  275;  People  v.  Murray,  41  Cal. 

308 


CHAP.  VII.]  BURDEN   OF  PROOF.  [§  355. 

of  severance  in  proof.  Nor  can  we  agree  that  the  investigations 
of  common  life  can  give  a  rule  decisive  of  those  in  a  court  of  jus- 
tice. Every  trial  is  a  public  contest,  in  which  a  litigant  appears 
to  advance  a  right.  If  this  right  is  denied  by  an  opponent,  then 
the  decision  is  referred  to  a  court  duly  constituted  as  the  organ 
of  the  state.  The  court,  when  the  case  comes  before  it,  is  bound 
to  know  nothing  as  to  the  merits  of  the  issue,  and  must,  there- 
fore, before  a  decision  be  made,  be  advised  as  to  such  merits  by 
the  party  making  such  claim,  whether  the  claim  consist  in  es- 
tablishing a  right  for  himself,  or  in  releasing  himself  from  the 
right  of  another.  On  the  party  putting  forth  such  right  this 
duty  is  incumbent.  Jura  socordibus  non  succurrent.  The  de- 
fendant, on  the  other  hand,  seeks  to  relieve  himself  from  the 
plaintiff's  case,  either  by  a  direct  traverse,  inficiatiojie,  or  through 
a  plea  of  avoidance,  in  which  he  sets  up  a  conflicting  claim  to  bar 
the  plaintiff's  demand.  If  he  take  this  second  attitude,  he  is 
in  the  same  attitude  as  the  plaintiff  ;  and  he  must  assume  tlu' 
burden  of  proof  in  making  good  his  defence.  Whenever, 
whether  in  plea,  or  replication,  or  rejoinder,  or  surrejoinder,  an 
issue  of  fact  is  reached,  then,  whether  the  party  claiming  the 
judgment  of  the  court  asserts  an  affirmative  or  negative  propo- 
sition, he  must  make  good  his  assertion.  On  him  lies  tlie  bur- 
den of  proof.^ 

§  355.    The  conclusion   thus   announced  is   affirmed   in   more 
than  one  emphatic  ruling  of  the  Roman  jurists,  when    „ 

•^  "^     _  .  Roman  law 

dealing  with  this  very  topic.  Semper  necessitas  pro-  is  to  this 
handi  incumbit  illi  qui  agit?  Whoever  undertakes  the 
office  of  advancing  a  claim,  whether  that  chiiui  be  mainten- 
ance or  release,  must  make  good  his  case.  A  defendant,  wlio 
seeks  to  relieve  himself  from  the  established  riglit  of  another,  is 
in  this  respect  in  the  same  position  as  the  plaintiff,  by  whom  a 
right  is  to  be  established.  Reus  exeipiendo  jit  actor.  So  far  as 
concerns  pleas  (^exceptionibus'),  Ulpian  tells  us''  that  the  detciid- 

^  Thus,    jvs   we  will   presently   sec     plaintid".      West   i'.   Irwin,  74    Penn. 
more  fully,  when  the  dcfi'ndant  in  an     St.  258. 

action  of   debt   pleads    payment,    the  -  L.  'Jl,   D.  de    probat.      See  same 

burden  is  on  himself;  when  he  pleads  [joint  in  L.  I'J,  pr.  L.  21,  C.  de  probat  ; 
non  e.s7  yiica/Hi,  the  burden  is  on   the     L.  !),  C.  di;  exeept. 

«  L.  19,  D.  de  probat.  .\.\ii.  3. 
30U 


§  355.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


ant  may  take  the  part  of  the  actor,  in  which  case  he  must  prove 
his  claim  ;  e.  g.  if  he  sets  up  a  countervaiUng  contract  ^pactum 
convcntuvi)^  he  must  prove  that  such  contract  was  actually  exe- 
cuted. Celsus  1  applies  the  rule  as  follows  :  A  legacy  of  five 
hundred  gold  pieces  is  left  to  you,  and  to  the  same  will  is  at- 
tached a  codicil  giving  you  the  same  amount.  The  question 
arises  whether  the  testator  meant  to  double  the  amount,  or  only 
to  affirm  in  the  codicil  that  which  he  had  forgotten  he  had  stated 
in  the  body  of  the  will.  On  which  party,  the  legatee  or  the  rep- 
resentatives of  the  testator,  in  a  suit  for  the  double  sum,  is  the 
burden  of  proof  ?  At  the  first  view,  so  concludes  Celsus,  it  seems 
more  equitable  (^aequius)  that  the  burden  should  be  on  the  lega- 
tee, to  make  good  his  claim.  But  if  there  be  avoiding  evidence, 
this  must  be  adduced  by  the  defendant.  If,  for  instance,  I  sue 
for  money  lent,  and  the  defendant  answers  that  the  mone}'  has 
been  paid  back,  this  defence  it  is  incumbent  on  him  to  prove 
(ipse  hoe  prohare  eogendus  est').  In  the  case  of  the  will  before 
us,  therefore,  if  the  plaintiff  proves  both  will  and  codicil,  and  the 
defendant  undertakes  to  show  the  codicil  is  inoperative,  the  bur- 
den is  on  him  to  prove  this  to  the  court.  The  theory  of  the 
Roman  law  in  this  relation  is,  that  the  part  of  an  actor  is  under- 
taken only  by  him  whose  rights  are  either  denied  or  doubted. 
In  this  category  falls  not  only  the  plaintiff,  who  claims  a  right, 
but  the  defendant,  who  undertakes  to  defeat  by  his  own  claim 
another's  right ;  and  it  is  incumbent  therefore  on  the  latter,  £x- 
eeptionem  velut  intentionem  implere?  On  the  other  hand,  the 
reus,  or  defendant,  who  quietly  and  silently  waits  the  plaintiff's 
attack,  interposing  only  a  plea  in  bar,  has  no  burden  in  respect 
to  proof.  Actore  non  probante,  qui  convenitur,  etsi  7iihil  ipse 
praestiterit,  ohtinehit.^  So  far  as  concerns  the  Roman  maxim, 
on  which  Mr.  Best,  and  those  whom  he  cites,  rely  as  of  first  au- 
thority, little  need  be  said.  Ei  ineumhit  probatio  qui  dicit,  non 
qui  negat,  is  undoubtedly  of  classical  origin  ;  ^  and  with  this  may 
be  coupled,  Negantis  naturali  ratione  nulla  est  probatio.^  But  to 
affirm  that  these  maxims  were  set  forth  as  containing  a  correct 
theory  as  to  the  burden  of  proof,  is  to  affirm,  as  Heffter  remarks,^ 


1  L.  12,  id. 

2  L.  ID,  pr.  D.  id. 

8  L.  4,  C.  de  edendo.  ii.  1. 

310 


*  L.  2,  D.de  probat. 

5  L.  23,  C.  eod.  iv.  19. 

«  Weber,  Heffter's  App.  264. 


CHAP.  VII.]  BURDEN   OF   PROOF.  [§  356. 

that  the  jurists,  on  a  question  of  high  importance,  to  which 
they  gave  peculiar  thought,  announced  two  theories  in  direct 
conflict.  We  must,  therefore,  treat  the  maxim,  Ei  incumhit 
prohatio  qui  dicit,  non  qui  negate  as  equivalent  to  Actori  incumhit 
probatlo,  and  if  we  do  not  subordinate  the  second  maxim  to  the 
first,  we  must  subordinate  the  first  to  the  second.  That  the 
jurists  regarded  the  first  maxim  simply  as  a  formal  variation  of 
the  second,  there  is  good  exegetical  reason  to  assert.  JDicere,  like 
adseverare,^  may  well  mean,  to  claim? 

§  356.  It  is  asserted,  in  defence  of  the  rule  here  contested, 
that  a  negation  cannot  be  proved,  and  hence,  as  only  Negatives 
an  affirmation  is  provable,  on  the  affirming  party  tiijieoT^^" 
alone  can  rest  the  burden  of  proving.  To  this  the  fol-  proof, 
lowing  qualifications  may  be  made  :  The  inquiry  is,  not  for  mathe- 
matical certainty,  but  for  such  probability,  higher  or  lower,  as  is 
obtainable  in  judicial  proceeding.  High  probability  is  the  best 
we  can  obtain  in  any  case ;  high  probability  may  be  reached  as 
to  the  non-existence  of  many  things  which  are  claimed  to  exist. 
Arguments  drawn  from  non-juridical  fields  do  not  here  apply. 
It  may  be  difficult  for  me  to  prove  that  a  thing  does  not  exist 
in  all  space,  or  that  certain  occult  intents  may  not  lurk  in  the 
undisclosed  recesses  of  a  particular  person's  heart.  But  jurispru- 
dence has  to  do  with  no  such  vague  domains.  Its  territory  is 
limited.  It  inquires  whether,  in  a  particular  spot,  at  a  particular 
time,  open  to  human  observation,  a  particular  thing  existed  ;  or 
whether,  by  the  small  range  of  witnesses  to  whom  a  party  at  a 
particular  time  was  visible,  he  gave  signs  of  the  suspected  intent. 
It  is  possible,  within  such  limited  range,  to  call  all  witnesses 
who  were  likely  to  have  been  at  the  given  spot,  or  observed 
the  given  person,  at  the  particular  time,  and  so  to  approach  a 
negative  by  gradually  exhausting  the  affirmative.  In  fact,  as  is 
well  argued,^   what  is  counter-proof,  in  most  cases  (<•.  g.  in  an 

1  See  L.  19,  C.  de  probat.  kind  most   frt'ijiKMitly   alluded   to,  he- 

2  See  authorities   to   this  point   in     cause  (as   is   evitlent  from   what  has 
lieffter's  App.  to  Weber,  265.  been  just  said)  to  deny  —  or  to  dis- 

8  See  Meier,  CoUej^.  Argent,  tit.  de  believe  —  a  proposition    is  to   asaert, 

prob.  §  7;  Weber,  Ileffter's  ed.  135.  or  to  believe,  its   contradictory;   and, 

So  in  the  following  well  known  pas-  of  course,  to  assent  to,  or  maintain  a 

sage  by  Arehhisliop  Whately  : —  proposition,  is  to  reject  its  contradic- 

*'  '  Contradictory  opposition  '  is  the  tory.     Belief,  therefore,  and  disbelief, 

311 


§  356.] 


THE  LAW  OF  EVIDENCE. 


[book  II. 


alibi},  bjit  proof  of  a  negation  ?  We  may  prove  a  negative  indi- 
rectly, by  proving  conditions  incompatible  with  the  alleged  fact, 
showing,  for  instance,  that  a  party  charged  was  in  another  place 
than  that  necessary  to  the  plaintiff's  case  ;  or  we  may  do  it  di- 
rectly, by  calling  a  witness  present  at  the  latter  place,  and  prov- 
ing that  the  defendant  was  not  there.  So,  also,  where  a  plaintiff 
sues  for  a  debt ;  if  the  defendant  can  produce  an  admission  from 
the  plaintiff  that  the  debt  was  never  incurred,  this  is  proving 
a  negative,  but  a  negative,  which,  if  believed,  will  defeat  the 
plaintiff's  case.  How  often  is  the  question  put,  "  Could  such  a 
thing  have  been  done  without  your  seeing  it,"  and  how  conclu- 
sive has  sometimes  been  held  a  negation  based  upon  the  hypoth- 
esis that  without  the  witness  seeing  an  event  it  could  not  have 
happened.  In  actions  for  malicious  prosecution,  if  the  plaintiff 
does  not  in  some  way  approach  to  proof  of  a  negation  of  his 
guilt,  his  case  is  not  made.-^  So,  to  take  one  more  illustration  : 
Suppose  upon  a  suit  by  A.  against  B.,  B.  sets  up  as  a  defence  that 
A.  is  dead,  how  is  B.  to  prove  such  defence  in  cases  in  which  A., 


are  not  itco  different  states  of  the  mind, 
but  the  same,  only  considered  in  ref- 
erence to  two  contradictory  proposi- 
tions. And,  consequently,  credulity 
and  incrediditij  are  not  opposite  habits, 
but  the  same  ;  in  reference  to  some 
class  of  propositions,  and  to  their  con- 
tradictories. 

"  For  instance,  he  who  is  the  most 
incredidous  respecting  a  certain  per- 
son's guilt  is,  in  other  words,  the  most 
ready  to  believe  him  not  guilty ;  he 
who  is  the  most  credulous  as  to  cer- 
tain works  being  within  the  reach  of 
magic,  is  the  most  incredulous  (or 
'  slow  of  heart  to  believe  ')  that  they 
are  7ioMvithin  the  reach  of  magic;  and 
so  in  all  cases. 

"  The  reverse  of  believing  thvi  or  that 
individual  proposition  is,  no  doubt,  to 
disbelieve  that  same  proposition ;  but 
the  reverse  of  belief,  generally,  is  not 
disbelief  ;  since  that  implies  belief  ; 
but  doubt. 

"  And   there  may  even  be  cases  in 

312 


which  doubt  itself  may  amount  to  the 
most  extravagant  credulity.  For  in- 
stance, if  any  one  should  '  doubt 
whether  there  is  any  such  country  as 
Egypt,'  he  would  be  in  fact  believing 
this  most  incredible  proposition  ;  that 
'  it  is  possible  for  many  thousands  of 
persons,  unconnected  with  each  other, 
to  have  agreed,  for  successive  ages,  in 
bearing  witness  to  the  existence  of  a 
fictitious  country,  without  being  de- 
tected, contradicted,  or  suspected." 
Whately's  Logic,  book  ii.  chap.  ii. 
§  3. 

1  Tlie  plaintiff  must  show  that  the 
proceeding  was  entirely  groundless, 
and  it  is  not  sufficient  for  him  to  prove 
the  dismissal  of  the  charge.  Per  the 
Judicial  Committee  of  the  Privy  Coun- 
cil, Baboo  Guuesh  Dutt  v.  Mugnee- 
rain  Chowdry,  11  Beng.  L.  R.  321; 
Powell's  Evidence,  4th  ed.  291;  Ames 
V.  Snider,  69  111.  376;  IMitchell  v. 
Jenkins,  5  B.  &  A.  588  ;  Porter  v. 
Weston,  5  Bing.  N.  C.  715. 


CHAP.  VII.] 


BURDEN    OF   PROOF. 


[§  356. 


if  he  were  living,  would  be  over  one  hundred  years  old  ?  If  A. 
had  died  fifty  years  back,  it  might  be  difficult  to  find  witnesses 
who  saw  him  die,  and  the  best  that  the  defendant  could  do  would 
be  to  prove  that  A.  had  not  for  years  been  seen  or  heard  of  alive. 
If  we  did  not  rely  on  negative  proof,  or  on  negative  presumptions, 
which  are  the  same  thing,  those  who  died  out  of  the  memory  of 
man  would  have  to  be  juridically  treated  as  permanently  alive.^ 


^  In  support  of  the  proposition  that 
wherever  the  phiintiff  bases  his  action 
on  a  negative  allegation,  the  burden 
is  on  him  to  prove  such  allegation,  see 
Doe  V.  Johnson,  7  M.  &  Gr.  1047, 
lOGO;  Mills  V.  Barber,  1  M.  &  W. 
425;  Elkin  v.  Janson,  13  M.  &  W. 
655  ;  Fitch  v.  Jones,  5  E.  &  B.  238  ; 
Com.  V.  Bradford,  9  Mete.  268;  Cen- 
tral Bridge  Co.  v.  Butler,  2  Gray, 
130  ;  Com.  v.  Locke,  114  Mass.  288; 
Baldwin  v.  BulFalo,  35  N.  Y.  375; 
Strickler  v.  Burkholder,  47  Penn.  St. 
476  ;  Barton  v.  Sutherland,  5  Rich. 
57;  Conyers  v.  State,  50  Ga.  103; 
Adams  v.  Field,  25  Mich.  16  ;  Per- 
sons V.  McKibben,  5  Ind.  261  ;  West 
V.  State,  48  Ind.  483  ;  Duffield  v.  De- 
lancey,  36  111.  258 ;  Beardstown  v. 
Virginia,  76  111.  44;  Kerr  v.  Freeman, 
33  Miss.  202. 

In  all  suits  brought  for  failures  on 
part  of  a  carrier,  the  plaintiff  begins 
by  praving  or  inferring  a  negative  ; 
t.  e.  that  the  goods  were  not  delivered. 
See  infra,  §  362. 

So,  also,  the  party  making  the  alle- 
gation is  bound  to  prove  that  certain 
goods  were  not  legally  imported;  Sis- 
sons  V.  Dixon,  5  B.  &  C.  758 ;  and 
that  a  certain  theatre  is  not  duly  li- 
censed ;  Ilodwell  v.  Hedge,  1  C.  &  P. 
220;  or  that  certain  essential  notice 
was  not  given.  Williams  v.  E.  Ind. 
Co.  3  East,  1 D3. 

The  following  may  be  of  use  as  ad- 
ditional illustrations  of  the  proposi- 
tion of  the  text,  that  a  negative  alle- 
gation must   be   proved  by  the   party 


making  it,  whenever  such  allegation 
is  essential  to  such  party's  case. 

Wherein  an  action  against  a  tenant 
the  breach  assigned  is  that  the  prem- 
ises were  not  kept  in  repair,  and  this 
allegation  be  traversed  by  the  plea, 
the  plaintiff  must  prove  his  negative 
averment.  Soward  r.  Leggatt,  7  C. 
&  P.  613  ;  Doe  v.  Rowlands,  9  C.  & 
P.  734,  per  Coleridge,  J. ;  Belcher  v. 
M'Intosh,  8  C.  &  P.  720,  per  Alder- 
son,  B.  For  though  according  to  the 
grammatical  con>truction  of  the  issue, 
the  affirmative  lies  on  the  defendant, 
yet  the  substantial  merits  of  the  case 
must  be  proved  by  the  plaintiff ;  and 
if  no  evidence  were  given,  or  if  the 
allegation  on  which  issue  was  joined 
were  struck  from  the  record,  the  de- 
fendant would  clearly  be  entitled  to 
a  verdict.     Taylor's  !>.  §  338. 

It  has  been  also  ruled  that  where 
the  plaintirt",  in  an  action  on  a  life  pol- 
icy, after  averring  that  the  insurance 
was  effected  on  a  statement  made  by 
the  plaintiff,  that  the  insured  was  not 
subject  to  habits  or  attacks  of  illness 
tending  to  shorten  life,  but  was  in 
good  health,  —  should  proceed  to  aver 
that  this  statement  was  true,  and  the 
defendant  were  to  plead  that  it  was 
false  in  these  respects;  that  the  insured 
was  subject  to  habits  and  attacks  tend- 
ing to  shorten  life,  to  wit,  habits  of 
intemperance  and  attacks  of  erysi|>c- 
las,  and  was  ill  at  the  time  the  state- 
ment was  made, — in  such  ease  the 
burden  of  proof  would  lie  upoi\  (he 
plaintiff,  though  the  plea  should  con- 

313 


§  356.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


The  true  solution  of  the  question  is  that  which  has  been  stated, 
—  that  he  wlio  in  a  court  of  justice  undertakes  to  establish  a 


dude  with  a  verification,  and  be  met 
by  a  replication  ofluring  a  general 
denial;  because  to  entitle  tbe  plaintiff 
to  a  verdict,  some  evidence  must  be 
given  to  show  that,  at  the  time  when 
the  policy  was  eficcted,  the  life  was 
insurable.  Huckman  v.  Fornie,  3  M. 
&  W.  505,  510  ;  Ashby  v.  Bates,  15 
M.  &  W.  589  ;  i  Dowl.  &  R.  33,  S. 
C;  Geach  v.  Ingall,  14  M.  &  W.  95  ; 
Rawlins  v.  Desborough,  2  M.  &  Rob. 
70,  per  Ld.  Denman ;  8  C.  &  P.  321, 
S.  C;  Craig  v.  Fenn,  C.  &  Marsh. 
43,  per  Ibid.  See  Poole  v.  Rogers,  2 
M.  &Rob.  287. 

As  we  have  seen,  non-license  of  a 
theatre,  when  averred,  must  be  proved. 
Rodwell  r.  Redge,  1  C.  &  P.  229. 
Infra,  §  368. 

It  has  been  further  ruled  that  the 
underwriter,  in  an  action  on  a  marine 
policy,  who  sets  up  that  certain  mate- 
rial facts,  known  to  the  assured,  had 
been  concealed  from  him,  has  on  him 
the  burden  of  proving  the  non-com- 
munication of  these  facts,  on  a  repli- 
cation traversing  the  whole  plea  ;  for 
although  the  allegation  contained  in 
his  plea  may  be  negative  in  its  terms, 
still,  as  it  was  the  duty  of  the  assured 
to  make  tlie  communication,  —  either 
upon  the  principle  that  every  policy 
is  based  on  the  supposed  existence  of  a 
certain  state  of  facts,  or  on  the  ground 
that  insurance  is  a  contract  uberrimae 
Jidei,  —  some  evidence  should  be  given 
by  the  underwriter  to  rebut  the  pre- 
sumption that  the  assured  had  dis- 
charged his  duty.  The  amount  of  the 
proof  re(;[uired  will,  indeed,  vary  ac- 
cording to  the  circumstances  of  the 
case,  and  very  slender  evidence  will 
often  be  sufficient;  for  suppose  a  ship 
was  known  by  the  assured  to  have 
been  burned  at  the  time  when  the 
assurance  was  effected,  proof  of  this 

314 


fact  would  in  itself  be  reasonable  evi^ 
dence  to  show  that  it  had  not  been 
communicated,  because  no  underwriter 
in  his  senses,  had  he  been  aware  of 
such  a  circumstance,  would  have  exe- 
cuted the  policy.  Elkin  v.  Janson, 
13  M.  &  W.  655,  663,  665,  per  Parke 
and  Alderson,  BB.;  Taylor's  Ev.  § 
339. 

So,  to  meet  another  of  Mr.  Tay- 
lor's illustrations,  where  a  plaintiff 
avers  that  A.  was,  at  a  specified  time, 
of  sound  mind,  and  this  averment  is 
traversed  by  the  defendant,  the  latter 
is  bound  to  prove  the  negative  allega- 
tion of  incompetency,  because  every 
man  may  reasonably  be  presumed  to 
be  sane  till  the  contrary  is  shown,  and 
consequently,  this  presumption  of  fact, 
in  the  absence  of  evidence  to  the  con- 
trary, would  equally  serve  the  plain- 
tiff's purpose,  as  though  he  had  given 
express  evidence  of  the  sanity.  See 
Sutton  V.  Sadler,  26  L.  J.  C.  F.  284  ; 
3  Com.  B.  N.  S.  87,  S.  C. ;  Dyce  Som- 
bre I'.  Troup,  1  Deane  Ec.  R.  38,  49. 
On  the  ether  hand,  if  such  an  issue 
were  to  come  from  the  court  of  chan- 
cery, it  is  held  that  the  plaintiff  would 
be  called  upon  to  prove  the  sanity  of 
the  party,  because  the  court  in  such 
case  would  presume  that  the  judge  di- 
recting the  issue  had  considered  that 
a  prima  facie  case  of  madness  had 
been  made  out,  and  by  ordering  the 
party  who  relied  upon  the  sanity  to 
be  the  plaintiff',  had  intended  that  the 
burden  of  proof  should  devolve  upon 
him.  Frank  v.  Frank,  2  M.  &  Rob. 
314.      See  fully  infra,  §  1252. 

A  failure  to  comply  with  the  uni- 
formity statutes,  under  the  old  law,  if 
alleged,  must  be  proved.  Powell  v. 
Milburn,  5  B.  &  C.  758.  See  R.  v. 
Hawkins,  10  East,  216;  5.  C.  Dom. 
Proc.  2  Dow,  124. 


CHAP.  VII.] 


BURDEN   OF   PROOF. 


[§  356. 


claim   against   another,  or  to  set  up   a  release   from  another's 
claim  against  himself,  must  produce  the  proof  necessary  to  make 


If  to  an  action  brought  by  an  in- 
dorsee against  the  acceptor  of  a  bill 
of  exchange,  the  defendant  plead  that 
the  bill  was  accepted  by  him  for  the 
accommodation  of  the  drawer,  and  was 
indorsed  to  the  plaintiff  without  value, 
and  the  plaintiff  reply  that  it  was  in- 
dorsed to  him  for  a  valuable  consider- 
ation, the  burden  of  proving  this  issue 
will  be  on  the  defendant,  because  the 
mere  possession  of  the  bill  raises  a 
prima  facie  presumption  of  due  con- 
sideration having  been  given  for  it. 
Mills  V.  Barber,  1  M.  &  W.  425  ;  Tyr. 
&  Gr.  835  ;  5  Dowl.  77,  S.  C. ;  Whit- 
taker  V.  Edmunds,  1  M.  &  Rob.  366, 
per  Patteson,  J. ;  Fitch  v.  Jones,  5  E. 
&  B.  238. 

So,  in  a  case  already  fretjuently 
cited,  where  a  defendant  was  charged, 
in  an  action  on  the  case,  with  a  fail- 
ure to  give  notice  to  the  ship's  oflicers 
of  certain  explosive  compounds  deliv- 
ered by  him  to  them,  which  resulted 
in  the  burning  of  the  ship,  it  was  held 
that,  as  the  omission  to  give  notice 
would  have  been  a  criminal  neglect  of 
duty  on  the  part  of  the  defendant,  the 
law  presumed  that  notice  had  been 
given,  and  threw  upon  the  plaintiff 
the  burden  of  proving  the  negative. 
Williams  v.  E.  India  Co.  3  East, 
192. 

It  is  also  ruled  that  an  omission  to 
insure  must  be  proved  by  a  plaintiff, 
in  an  action  by  a  landlord  against  a 
tenant,  based  on  such  omission.  See 
Toleman  v.  Portbury,  39  L.  J.  Q.  B. 
136,  per  Ex.  Ch.  Had  the  landlord, 
it  is  said,  wished  to  have  been  relieved 
from  the  necessity  of  establishing  this 
negative  [»roof,  he  migl\t  easily  have 
inserted  a  clause  to  that  effect  in  the 
lease.  Doe  r.  Whitehead,  8  A.  &  E. 
571. 

Where,  also,  to  a  suit  for  not  exe- 


cuting a  contract  in  a  workmanlike 
manner,  the  defendant  pleads  that  the 
work  was  properly  done  ;  Amos  v. 
Hughes,  1  M.  &  Rob.  464;  or  where 
a  declaration  alleges  that  a  horse  sold 
under  a  warranty  was  unsound,  and 
this  fact  be  traversed  by  the  plea;  Os- 
born  V.  Thompson,  9  C.  &  P.  337,  per 
Erskine,  J.;  2  M.  &  Rob.  254,  S.  C. ; 
Cox  V.  Walker,  cited  9  C.  &  P.  339. 
per  Ld.  Denraan;  S.  P.,  ruled  per 
Tindal,  C.  J.,  as  cited  Ibid.  338;  the 
onus",  in  either  case,  will  lie  on  the 
plaintiff,  and  the  same  rule  will  pre- 
vail in  an  action  brought  against  an 
attorney  for  not  using  due  diligence; 
Shilcock  V.  Passman,  7  C.  &  P.  291, 
per  Alderson,  B.;  or  against  a  mer- 
chant for  not  loading  a  sufficient  cargo 
on  board  a  ship,  pursuant  to  a  charter 
party;  Ridgway  v.  Ewbank,  2  M.  & 
Rob.  217,  per  Alderson,  B.;  or  against 
an  architect  for  not  building  houses 
according  to  a  specification.  Smith  v. 
Davios,  7  C.  &  P.  307,  per  Aider- 
son,  B. 

Were  a  defendant  to  plead  that  ho 
had  accepted  the  bill  for  his  own  ac- 
commodation, and  that  the  drawer, 
instead  of  getting  it  discounted  for 
the  use  of  the  defendant,  had  indorsed 
it  to  a  stranger,  who  had  fraudulently 
indorsed  it  to  the  ])laintiff,  after  it  be- 
came due,  or- without  consideration, 
ami  the  plaintiff  were  to  traverse  this 
last  allegation,  the  burden  of  proving 
that  the  bill  was  overdue  at  tlie  time 
of  indorsement,  or  that  no  value  wa.s 
given  for  it  by  the  holder,  would  de- 
volve on  the  defendant,  because  the 
plea  does  not  contain  such  an  allega- 
tion of  fraud  as  would  counteract  tho 
presumption  arising  from  the  posses- 
sion of  the  instrument.  Lewis  v.  Par- 
ker, 4  A.  &  E.  838;  Jacob  r.  Iliingato. 
1  M.  &  Rob.  445,  per  Parke,  B.; 
315 


§  357.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


den  lies 
on  the 
actor. 


good  his  contention.  This  proof  may  be  either  affirmative  or 
negative.  Whatever  it  is,  it  must  be  produced  by  the  party  who 
seeks  forensically  either  to  estabhsh  or  to  defeat  a  claim. 

§  357.  It  makes  no  difference,  therefore,  whether  the  actor  is 
The  bur-  plaintiff  or  defendant,  so  far  as  concerns  the  burden  of 
proof.  If  he  undertake  to  make  out  a  case,  whether 
affirmative  or  negative,  this  case  must  be  made  out  by 
him,  or  judgment  must  go  against  him.  Hence  it  may  be  stated, 
as  a  test  admitting  of  universal  application,  that  whether  the 
proposition  be  affirmative  or  negative,  the  party  against  whom 
judgment  would  be  given,  as  to  a  particular  issue,  supposing  no 
proof  to  be  offered  on  either  side,  has  on  him,  whether  he  be 
plaintiff  or  defendant,  the  burden  of  proof,  which  he  must  satis- 
factorily sustain. 1     If  there  is  a  case  made  out  against  a  defend- 


Brown  v.  Philpot,  2  Ibid.  285,  per  Ld. 
Denman.  In  this  last  case  the  repli- 
cation was  de  injuria.  See,  also,  Smith 
V.  Martin,  C.  &  Marsh.  58;  Taylor's 
Ev.  §  340. 

1  Amos  V.  Hughes,  1  M.  &  Rob. 
464;  Doe  v.  Rowlands,  9  C.  &  P.  735; 
Osborn  v.  Thompson,  9  C.  &  P.  337; 
Ridgway  v.  Ewbank,  2  M.  &  Rob. 
218;  Huckman  v.  Firnie,  3  M.  &  W. 
505;  Elkin  v.  Janson,  13  M.  &  W. 
655;  Geach  v.  Ingall,  14  M.  &  W. 
97;  Ashby  v.  Bates,  15  M.  &  W.  589; 
Sutton  V.  Sadler,  3  C.  B.  (N.  S.)  87; 
Bradley  v.  McKee,  5  Cranch  C.  C. 
298;  Prevost  v.  Gratz,  6  Wheat.  481 ; 
Huchberger  v.  Ins.  Co.  5  Bissel,  106 ; 
Hankin  v.  Squires,  5  Bissel,  186;  Ful- 
lerton  v.  Bank  U.  S.  1  Pet.  607  ;  Mc- 
Lellan  v.  Crofton,  6  Me.  308;  New 
Haven  Co.  v.  Brown,  46  Me.  418 
Shackford  v.  Newington,  46  N.  H.  415 
Kendall  v.  Brownson,  47  N.  H.  186 
Gilmore  v.  Wilbur,  18  Pick.  517 ;  Beals 
V.  Merriam,  11  Mete.  (Mass.)  470; 
St.  John  V.  R.  R.  1  Allen,  544;  Pratt 
V.  Lamson,  6  Alien,  457;  Broaders  v. 
Toomey,  9  Allen,  65  ;  Central  Bridge 
V.  Butler,  2  Gray,  130 ;  Dorr  v.  Fisher, 
1  Cush.  227;  Morgan  v.  Morse,  13 
Gray,  150 ;  Pratt  v.  Langdon,  97 
316 


Mass.  97;  Gay  v.  Southworth,  113 
Mass.  333  ;  New  Bedford  v.  Hingham, 
117  Mass.  445  ;  Parsons  v.  Topliflf,  119 
Mass.  245;  Funcheon  v.  Harvey,  119 
Mass.  469;  Ootheal  v.  Talmadge,  1 
E.  D.  Smith,  573 ;  Heinemann  v.  Heard, 
62  N.  Y.  448;  Zerbe  v.  Miller,  16 
Penn.  St.  488;  Pittsburg  R.  R.  i'. 
Rose,  74  Pfnn.  St.  362;  Briceland  t". 
Com.  74  Penn.  St.  463  ;  Reeve  v.  Ins. 
Co.  39  Wise.  520 ;  State  v.  McGinley, 
4  Ind.  7 ;  Spaulding  v.  Harvey,  7 
Ind.  429;  Kent  v.  White,  27  Ind. 
390;  Milk  v.  Moore,  39  111.  584; 
Maltman  i-.  Williamson,  69  111.  423  ; 
Hyde  v.  Heath,  75  111.  381  ;  Woodrutt' 
V.  Thurlby,  39  Iowa,  344;  Veiths  c. 
Hagge,  8  Iowa,  163 ;  Grimmell  v. 
Warner,  21  Iowa,  11  ;  Burton  r. 
Mason,  26  Iowa,  392;  Day  v.  Raguel, 
14  Minn.  273;  Johnson  v.  Gorman, 
30  Ga.  612;  Shulman  v.  Brantley,  50 
Ala.  81;  Hill  v.  Nichols,  50  Ala. 
336;  Stoddard  v.  Kelly,  50  Ala.  453; 
Brandon  v.  Cabiness,  10  Ala.  155; 
Craig  i;.  Perois,  14  Rich.  Eq.  150; 
Carver  v.  Harris,  19  La.  An.  621; 
Fox  V.  Billiard,  35  Miss.  160;  Rich- 
ardson V.  George,  34  Mo.  104;  Church 
J'.  Fagin,  43  Mo.  123;  Gatewood  t'. 
Bolton,   48    Mo.    78  ;    Henderson    v. 


CHAP.  VII.] 


BURDEN   OF    PROOF. 


[§  357. 


ant,  on  which,  if  the  plaintiff  should  close,  a  judgment  would  be 
sustained  against  the  defendant,  then  the  defendant  has  on  him 
the  burden  of  proving  a  case  by  which  the  plaintiff's  case  will 
be  defeated.^  Thus  if  a  defendant  answers  to  a  contract  made 
by  him,  that  he  acted  therein  exclusively  as  agent  for  another, 
the  burden  is  on  him  to  prove  such  agency  ;  ^  and  so  if  he  set  up 
non-joinder  by  plea  in  abatement ;  ^  and  so  if  he  set  up  a  prior 
conviction  or  acquittal ;  *  and  so  if  he  set  up  accord  and  satisfac- 
tion ;  ^  and  so  if  he  set  up  confession  and  avoidance  ;  *^  and  so  if 
he  set  up  illegality  under  the  stock -jobbing  act ; ''  or  illegality  un- 
der the  liquor  acts ;  ^  and  so  if  he  set  up  usury  ;  ^  or  other  illegal- 
ity or  fraud  ;  ^^  and  so  if  he  set  up  payment ;  ^^  and  so  if,  to  a 
note,  he  set  up  failure  of  consideration.^^     gg  the  burden  is  on  a 


State,  14  Tex.  503;  Mills  y.  Johnston, 
23  Tex.  308 ;  Luckhart  v.  Ogden,  30 
Cal.  547.  This  rule  applies  to  claim- 
ants in  forfeiture  cases.  The  Short 
Staple,  1  Gall.  104;  The  Argo,  1 
Gall.  150;  U.  S.  V.  Hay  ward,  2  Gall. 
499. 

I  TreadwoU  v.  Joseph,  1  Suinn.  390; 
Railroad  Co.  v.  Ghulnion,  15  Wall. 
401;  Briggs  v.  Taylor,  28  Vt.  180; 
Gray  v.  Gardner,  17  Mass.  188  ;  Davis 
V.  Jenney,  1  Mute.  221  ;  Attleboro  v. 
Middleboro,  10  Pick:.  378;  Com.  v. 
Daley,  4  Gray,  209  ;  Lewis  v.  Smith, 
107  Mass.  334;  Wolcott  v.  Holcouib, 
31  N.  Y.  125;  Sullivan  v.  R.  R.  30 
Penn.  St.  234  ;  Empire  Trans.  Co.  v. 
Wainsutta  Co.  C3  Penn.  St.  17;  Zerbe 
r.  Miller,  16  Penn.  St.  488  ;  Winans 
V.  Winans,  19  N.  J.  Eq.  220;  Freeh 
t;.  R.  R.  39  Md.  574;  Gough  v.  Crane, 
3  Md.  Ch.  119;  Peck  v.  Hunter,  7  Ind. 
295;  Kent  v.  White,  27  Ind.  390; 
Southworth  v.  Hoag,  42  111.  44G  ;  Ad- 
ams Ex.  Co.  V.  StettaniTS,  61  111.  184; 
Hale  V.  Hazelton,  21  Wise.  620  ;  Cas- 
tello  i;.  Landwehr,  28  Wise.  522; 
Ketchum  r.  Ex.  Co.  52  Mo.  390;  Zemp 
V.  Wilmington,  9  Rich.  L.  84;  Steele 
I'.  Townsend,  37  Ala.  24  7;  Peck  i». 
Chapman,  16  La.  An.  366;  Ilutchins 
V.  Hamilton,  34  Tex.  290. 


^  Whart.  on  Agen.  §  491 ;  Vawter 
V.  Baker,  23  Ind.  63;  Winans  v.  Wi- 
nans, 19  N.J.  Eq.  220. 

8  Jewett  V.  Davis,  6  N.  H.  518. 

*  Whart.  Cr.  L.  §  568;  Com.  r. 
Daley,  4  Gray,  209. 

^  American  i-.  Rimpert,  75  111. 
228. 

«  Gray  I'.  Gardner,  17  Mass.  188 
Davis  V.  Jenney,  1  Mete.  (Mass.)  221 
Attleboro  v.  Middleboro,  10  Pick.  378 
Peck  V.  Hunter,  7  Ind.  295. 

■f  Dykers  v.  Townsend,  24  N.  Y. 
57. 

8  Trott  V.  Irish,  1  Allen,  481. 

9  Cutler  V.  Wright,  22  N.  Y.  472; 
Thomas  i'.  Murray,  32  N.  Y.  605;  Da- 
vis I'.  Bowling,  19   Mo.  G51. 

"  Dalrymple  v.  Hillenbrand,  62  N. 
Y.  5;  Feldman  v.  Gamble,  26  N.  J.  Eq. 
494, 

11  Winter  v.  Simonton,  3  Cranch, 
104  ;  Ilankin  r.  Sipiires,  5  Bissel,  186; 
Wetherell  v.  Swan,  32  Me.  217;  Buz- 
zell  V.  Snell,  25  N.  H.  4  74  ;  McKinnej 
I).  Slack,  49  N.  J.  Eq.  164  ;  Edmonds 
[I.Edmonds,  1  Ala.  86  ;  McLendon  r. 
Haml)lin,  34  .\la.  86  ;  Irwin  r.  Ger- 
non,  18  La.  An.  228  ;  CauUield  r.  San- 
ders, 17  Cal.  569  ;  Yarnell  v.  Ander- 
son, 14  Mo.  619. 

"  Emery  v.  Estes.  31  Me.  13.^:  Crai; 

317 


§  358.]  THE  LAW   OF   EVIDENCE.  [BOOK  II. 

carrier,  wlien  sued  on  the  contract  of  carriage,  to  prove  that  the 
loss  was  through  an  excepted  peril ;  ^  or  that  the  goods  were  not 
in  a  good  condition  when  delivered  to  the  carrier  ;  ^  or  did  not 
come  to  the  carrier.^ 

§  358.  It  is  in  cases  of  tort  that  jurists,  both  ancient  and 
Burden  13  modern,  have  found  the  greatest  difficulty  in  the  deter- 
setUn'^'up  mination  of  the  question  before  us.*  The  true  solution 
^^^^-  is  this  :  the  burden  lies  on  the  party  seeking  in  a  court 

of  justice  either  to  make  good  his  claim  for  damages  arising  from 
the  tort  of  another,  or  to  establish  a  release  from  such  claim,  sup- 
posing it  to  be  made  out  against  himself,  by  imputing  tort  to 
the  plaintiff.  Hence,  according  to  the  Roman  law,  he  who 
charges  dolus  or  culpa  on  another  must  prove  such  dolus  or 
culpa;  while  he  who,  on  such  case  being  made  out,  sets  up  casus, 
or  the  contributory  agency  of  the  plaintiff,  must  prove  such 
casus,  or  contributory  agency.^  In  our  own  law,  .it  is  an  ele- 
mentary principle  that  a  party  setting  up  a  tort  has  the  burden 
on  him  to  prove  such  tort.^  Thus,  as  will  presently  be  more 
fully  seen,  when  the  cause  of  action  is  negligence,  the  plaintiff 
must  prove  the  negligence ;  '^  when  it  is  deceit,  the  plaintiff  must 
prove  the  deceit ;  ^  when  deceit  is  set  up  as  a  defence,  the  deceit 
must  be  proved  by  the  defendant.^     If,  to  a  tort,  justification  is 

V.   Proctor,   6    R.  I.    547;  Dresser  v.  Inst.  §  761,  n.  4;  Gluck,  Pandekt.  4, 

Ainsworth,  9  Barb.  619.     But  see  De-  §324;    Schmidt,   Comment,    von   ge- 

lano  V.  Bartlett,  6  Cush.  364;  Cook  v.  richt.  Klagen;  Endemann,  Beweislast, 

Noble,  4  Ind.  221;  Topper  v.  Snow,  49^;  Weber,  HefEter's  ed.  172. 
20  111.  434;  MUler  v.  Deal,  9  Rich.  S.  ^  Weber,  Heffter's  ed.  173. 
C.  75.  *  See  cases  cited  supra,  §  357. 

^  Steamer  Niagara  v.    Cordes,    21         ''  Infra,  §  359. 
How.  7;   Tarbox  v.   Steamb.  Co.  50         ^  Huchberger  v.  Ins.  Co.  5  Bissel, 

Me.  339;  Shaw  v.  Gardner,  12  Gray,  lOG;  Holbrook  v.  Burt,  22  Pick.  546; 

488;  Byrne  v.  Boadle,  2  H.  &  C.  722;  Strong  r.  Place,  4  Robb.  N.  Y.  385; 

Vaughan  v.   R.  R.   5   H.   &  N.   579;  Mutual  Ins.  Co.  v.  Wager,  27   Barb. 

Freemantle  v.  R.  R.  10  C.  B.  N.  S.  354;  Grimmell   v.  Warner,    21   Iowa, 

89;  Humphreys  i;.  Switzer,  11  La.  An.  11;  Oaks  v.  Harrison,  24  Iowa,  179; 

320.     See  other  cases  in   Whart.  on  Robinson  v.  Quarles,  1  La.  An.  460. 

Neo-.  §  128.  See  Bigelow's  Cases  on  Torts,  1-59. 

»  Illinois  R.  R.  v.  Cowles,  32  111.         ^  Huchberger  v.  Ins.  Co.  5  Bissel, 

116.  106;  Trenton  Ins.  Co.  v.  Johnson,  4 

«  Price  V.  Powell,  3  N.  Y.  322.  Zab.  576  ;  New  York  Ins.  Co.  v.  Gra- 

*  See,  particularly,  Leyser,  Medit.  ham,  2  Duvall,  506. 
ad  Pand.  sp.  176;  Hopfner,  Comment. 

318 


CETAP.  VII.]  BURDEN    OF   PROOF.  [§  350. 

set  up  by  the  defendant,  the  burden  is  on  him  to  prove  such 
justification. 1  And  so  when  the  defendant,  to  an  action  for  tres- 
pass, sets  up  probable  cause  on  his  part  to  believe  that  the  land 
belonged  to  himself,  he  must  prove  such  probable  cause.''^ 

§  359.  The  question  has  been  sometimes  put,  whether,  suppos- 
ing we  have  simply  a  case  of  injury  produced  by  a 
defendant,  the  plaintiff,  on  proving  such  mere  injury,  party  set- 
may  not  close,  leaving  it  to  the  defendant  to  discharge  negligence 
himself  by  proof  of  due  care.  The  point,  however,  is  °P''*^^^'- 
purely  speculative,  not  likely  ever  to  arise  in  fact,  and  likely,  if 
discussed  theoretically  before  a  jury,  to  mislead.  The  hypothesis 
of  a  perfectly  colorless,  motiveless,  isolated  injury,  which  can  be 
proved  without  necessarily  proving  some  cii'cumstances  from 
which  negligence  or  malice  can  be  either  inferred  or  negatived, 
is  as  absurd  as  is  the  hypothesis  of  an  abstract  killing,  which  the 
schoolmen  conceived  in  order  to  justify  their  doctrine  of  abstract 
malice  being  deducible  from  abstract  killing  as  a  presumption  of 
law.  To  take  up  the  case  immediately  before  us,  it  is  impossi- 
ble to  suppose  evidence  of  a  railway  injury  without  evidence  of 
how  such  injury  was  received.  It  is  possible,  of  course,  to  im- 
agine a  witness  coming  into  court  to  say,  "  A.  was  injured  by 
B. ;  "  or,  "  A.  was  killed  by  B. ;  "  but  this  would  be  a  conclusion 
of  law  which  would  be  inadmissible.  The  only  evidence  that 
could  be  received  in  such  case  would  be  the  facts  in  the  concrete  ; 
and  the  facts  could  not  be  proved  in  the  concrete  without  show- 
ing something  as  to  how  the  hurt  was  inflicted.  If  these  cir- 
cumstances do  not  indicate  negligence  (or  malice,  if  the  suit  be 
for  a  malicious  injury)  on  the  part  of  the  defendant,  then  the 
plaintiff  must  be  nonsuited.  The  burden  is  on  him  to  prove  an 
unlawful  act  on  the  part  of  the  defendant.'^ 

1  Brackett  v.  Ilayden,  15  Me.  347;  Lyndsay  v.  R.  R.  27  Vt.  643  ;  Ware 
Lorin;^  v.  Aborn,  4  Cush.  COS;  Gaul  v.  Gay,  11  Pick.  lOG;  Lane  v.  Crom- 
V.  Fk'ininjr.  10  Ind.  253;  TreadwcU  v.  bie,  12  Pick.  177;  Kobiiison  i\  R.  R 
Josei)b,  1  Siimn.  390.  7  Gray,  92;  Parrott  v.  ^Voll.^  15  Wall 

2  Walthei- r.  Warner,  26  IMo.  143.         524;  The   Empire   Stale,   1   I5en.  57 
8  Cotton  V.  Wood,    8   C.  B.   N.  S.     Russel  Manuf.  Co.  r.  K.  R.  50  N.  Y 

568;  Scott  u.  Docks,  3  H.  &  C.  596 ;  121;    Losee  v.   Buchanan,   51    N.  Y 

Hammack  v.  White,  11   C.  B.  N.   S.  4  76;  Gillespie  t'.  City,  54  N.  Y.  468 

588;  Toomey  v.  R.  R.  3  C.  B.  N.  S.  McCully  v.  Clarke,  40  Pcnn.  St.  399; 

146;    Carpue   v.   R.  R.  5  Q.  B.   751;  Empire   Trans.   Co.  v.  Wanisufta  Co 

Beaulieu  v.  Portland  Co.  48  Me.  291;  63  Penn.  St.  17;  Rait.  &  O.  R.  R.  t 

31  y 


§  360.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


Burden  on 
plaintiff 
from  negli- 
gence in 
suit 

against  R. 
R.  for  fir- 
ing. 


§  360.  An  interesting  question,  as  to  which  there  have  been 
greut  fluctuations  of  opinion,  here  arises  as  to  tlie  bur- 
den of  proving  negligence  in  a  suit  against  a  rail- 
road company  for  setting  fire  to  adjacent  property  by 
sparks  from  its  locomotives.  Supposing  that  the  rail- 
road company  is  authorized  to  use  locomotives,  then  it 
is  not  liable  for  any  injury  incident  to  the  working 
of  the  locomotives,  provided  it  has  used  proper  caution  and  skill 
in  selecting  and  running  them.  We  should  hold,  therefore, 
on  principle,  that  a  suit  against  a  railroad  company,  in  cases 
of  this  class,  would  stand  on  the  same  footing  as  suits  against 
private  individuals  for  injuries  caused  by  the  negligent  escape 
of  fire  from  the  latter's  premises  ;  in  other  words,  that  the  bur- 
den is  on  the  plaintiff  to  prove  that  the  escape  of  fire  was 
through  the  negligence  of  the  defendant.  And  so  has  it  been 
frequently  held.^  On  the  other  hand,  it  has  been  argued  that 
from  the  rapidity  of  movement  of  locomotives,  and  the  difficulty 
of  identifying  them,  it  is  peculiarly  incumbent  on  the  defendant 
in  such  issues,  to  show  the  character  of  the  engines  by  which  the 
fire  was  communicated  ;  and  for  this  reason  (for  no  other  is  avail- 
able for  this  purpose),  it  has  been  held  that  proof  of  fire  having 
been  communicated  throws  the  burden  of  exculpation  on  the  de- 
fendant.2     In   some  states,  this  has  been   provided  by  statute.-^ 

Fitzpatrick,  35  Md.  32  ;  Freeh  v. 
R.  R.  39  Md.  574  ;  Bradley  v.  Xorth- 
ern  Nav.  Co.  15  Oh.  St.  553;  Mc- 
Mahon  v.  Davidson,  12  Minn.  337; 
Chicago  V.  Mayor,  18  III.  349;  City  v. 
Hildebrand,  61  111.  155;  Corastock  v. 
R.  R.  32  Iowa,  376;  Gliddon  v.  Mc- 
Kinstry,  28  Ala.  408;  Dobbs  v.  Jus- 
tices, 17  Ga.  624;  Mitchell  v.  R.  R. 
30  Ga.  22;  Tourtellot  v.  Rosebrook, 
11  Mete.  (Mass.)  4 GO.  As  to  special 
statute  directing  the  contrary,  see  § 
360. 

1  Vaughan  v.  R.  R  5  H.  &  N.  6  79 ; 
Jones  V.  R.  R.,  L.  R.  3  Q.  B.  737; 
Hammersmith  v.  Brand,  L.  R.  4  H. 
of  L.  171  ;  Smith  v.  R.  R.,  L.  R.  5  C. 
B.  98;  Burroughs  v.  R.  R.  15  Conn. 
124;  Shelton  v.  R.  R.  29  Barb.  226  ; 
<S.  C.  14  iST.  Y.  218;  Hinds  v.  Barton, 
320 


25  N.  Y.  544;  Morris  &  E.  R.  R.  v. 
State,  36  N.  J.  553  ;  Phil.  &  Read.  R. 
R.  V.  Yeiser,  8  Barr,  366;  Hugett  i;. 
R.  R.  23  Penn.  St.  3  73;  R.  R.  v.  Yer- 
ger,  73  Penn.  St.  121 ;  Jeffers  v.  R.  R. 
3  Houst.  447;  Robinson  v.  R.  R.  32 
Mich.  322;  Smith  v.  R.  R.  37  Mo. 
287;  Herring  v.  R.  R.  10  Ired,  402; 
McCreedy  v.  R.  R.  2  Strob.  356  :  Ma- 
con R.  R.  V.  McConnell,  37  Ga.  481 ; 
Flynn  v.  R.  R.  40  Cal.  14;  McCum- 
mons  V.  R.  R.  33  Iowa,  187;  Kans.  P. 
R.  R.  Co.  V.  Butts,  7  Kans.  308. 

2  Spaulding  v.  R.  R.  30  Wise.  110  ; 
Galpin  v.  R.  R.  19  Wise.  606;  Burke 
V.  R.  R.  7  Heisk.  451 ;  Home  v.  R.  R. 
1  Cold.  72;  Hull  v.  R.  R.  14  Cal. 
387.  See  Coale  v.  R.  R.  60  Mo.  235, 
where  this  conclusion  is  approximated. 

s  So  in  Vermont,  see  Grand  Trunk 


CHAP.  VII.] 


BURDEN   OF   PROOF. 


[§  360, 


This,  however,  cannot,  at  common  law,  be  sustained,  as  it  would 
lead  to  a  judgment  of  negligence  being  entered  when  no  negli- 
gence was  proved.  At  the  same  time,  in  view  of  the  fact  that  the 
tests  of  determining  the  adequacy  of  the  engines  and  appoint- 
ments of  the  road  are  almost  exclusively  in  the  power  of  the  de- 
fendant, very  slight  proof  of  negligence  offered  by  the  plaintiff  is 
sufficient  to  throw  the  burden  of  exculpation  on  the  defendant.^ 


E,.  R.  V.  Richardson,  U.  S.  Sup.  Ct., 
Oct.  7,  1875.  In  Maine,  Chapman  v. 
R.  R.  37  Me.  92.  In  Maryland,  Bait. 
&  S.  R.  R.  V.  AVoodrufe,  4  Md.  242. 
In  Illinois,  Chic.  &  N.  W.  R.  R.  v.  Mc- 
Cahill,  5G  111.  28.  As  to  proof  of  prior 
firings  to  allect  this  burden,  see  supra, 
§42^ 

^  See  this  point  discussed  in  Whart. 
on  Neg.  §§  871-2. 

This  argument,  that  the  burden  in 
such  cases  is  on  the  plaintifTf,  is  ably 
presented  by  Holmes,  J.,  in  Smith  v. 
R.  R.  37  Mo.  287:  — 

"  We  cannot  say  that  there  was  any 
evidence  before  the  jury  which  tended 
to  show  actual  negligence  on  the  part 
of  the  defendant,  and  the  plaintiff 
was  not  entitled  to  recover,  unless  the 
proposition  can  be  maintained  that 
from  the  mere  fact  that  a  fire  was  set 
by  sparks  from  the  engines,  and  dam- 
age done,  '  the  presumption  is  that 
said  fire  escaped  by  the  negligence  of 
the  defendant  or  its  agents.'  The  in- 
struction seems  to  propound  a  conclu- 
sive presumption  of  laAv  in  reference 
to  the  issue,  and  a  kind  of  disputable 
presumption  of  fact  in  reference  to 
the  matter  of  negligence.  The  (jues- 
tion  presented  is  whether  these  facts 
amount  to  a  prima,  facie  case  of  lia- 
bility on  the  ground  of  negligence. 

"  There  are  no  statutes  in  this  .state 
which  declare  that  any  such  state  of 
facts  shall  constitute  a  presumptive  or 
prima  facie  case  of  liability,  nor  does 
this  belong  to  a  class  of  cases  in  which 
there  are  any  special  presumptions  of 
vol..  1  21 


law  or  fact  arising  out  of  the  peculiar 
relations  of  the  parties  or  privity  of 
contract.  Presumptions  are  mere  ar- 
guments at  best,  and  are  only  such 
as  would  warrant  a  jury  in  inferring 
the  fact  of  negligence  from  the  other 
facts  proved,  in  the  ordinary  course 
of  reasoning,  according  to  the  natural 
and  proper  relations  of  things,  and  the 
common  sense  and  experience  of  man- 
kind. 1  Greenl.  Ev.  §§  44,  48.  It  is 
not  apparent  how,  by  any  rational 
process  of  thinking,  a  jury  could  draw 
the  conclusion,  from  the  facts  j)rovetl 
here,  that  the  defendant  had  been 
guilty  of  actual  negligence.  The 
more  reasonable  presumption  would 
rather  seem  to  be  that  the  firt;  had 
occurred  by  accident  or  mischance. 
On  the  other  hand,  there  would  seem 
to  be  like  ground  for  a  presumption 
equally  strong  that  the  fire  had  been 
set  by  sparks  from  the  burning  corn- 
stalks, and  that  tliere  had  been  negli- 
gence on  the  part  of  the  plaintiff. 

"  The  allegation  is  not  merely  of  a 
fire  and  damage  by  sjwrks  from  the 
engine,  but  that  the  whole  thing  was 
caused  by  the  negligence  of  the  de- 
fendant, and  on  this  the  issue  is 
taken.  The  negligence  is  thus  made 
to  be  the  substance  of  the  i.^sue.  It 
is  the  whole  ground  and  very  gist  of 
the  action,  and  it  must  be  pnived  iu>< 
laid.  It  is  a  familiar  rule  that  the 
proofs  must  correspond  to  the  allega- 
tions. It  is  not  enough  that  a  part  of 
the  facts  involved  in  the  impiiry  arc 
made   to   appear.      Tho   whole   issue 

321 


§  361.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


§  361.  Suppose  it  be  alleged,  on  the  part  of  the  defendant, 
In  a  suit  that  the  injury  accrued  through  the  plaintiff's  negli- 
gent u^e'of  gence,  on  whom  lies  the  burden  ?  No  doubt  we  have 
riffht^con-    tl^cta  to  the  effect  that  a  plaintiff  suing  for  damages 


must  be  proved,  and  the  burden  of 
proof  is  on  the  plaintiff.  If  he  failed 
to  prove  the  whole  issue,  he  comes 
short  of  making  out  a  prima  facie 
case,  and  the  jury  should  be  instructed 
to  find  for  the  defendant. 

"  But  in  all  that  class  of  cases  where 
no  statute  interferes,  and  no  peculiar 
relation  or  privity  of  contract  exists, 
and  the  parties  stand  in  the  position 
of  strangers,  with  only  those  rights 
and  mutual  obligations  which  belong 
to  all  neighbors  and  persons  alike,  in 
the  use  and  enjoyment  of  their  own 
propert}',  and  in  the  conduct  of  their 
own  lawful  business,  and  negligence 
is  the  ground  of  action,  the  burden  of 
proof  is  always  on  the  plaintiff;  the 
fact  of  negligence  must  be  proved, 
and  there  is  no  such  thing  as  a  pre- 
sumption of  negligence  as  a  matter  of 
law  without  proof  of  the  fact,  and  no 
other  presumption  of  fact  than  such 
as  belongs  to  the  proper  force  and  the 
rational  weight  of  the  evidence,  of 
which,  when  there  is  any,  the  jury  is 
to  judge,  under  the  instructions  of  the 
court.  This  rule  was  applied  in  the 
case  of  Schultz  v.  Pacific  R.  R.  36 
Mo.  13. 

"  The  defendant  is  not  liable  for  mere 
accident  or  mischance,  nor  unless  it 
can  be  also  shown  that  there  was 
actual  negligence  which  caused  or 
.produced  the  accident  and  damage. 
Without  the  aid  of  sheer  conjecture, 
or  some  presumption  of  law  or  fact, 
beyond  what  the  facts  proved  ra- 
tionally imported,  it  is  not  easy  to  see 
how  the  jury  could  infer  either  that 
the  defendant  had  been  guilty  of  neg- 
ligence, or  that  the  fire  was  set  by 
sparks  from  the   engine,  rather  than 

322 


from  the  burning  corn-stalks.  The 
jury  is  not  to  jump  at  a  conclusion 
without  proofs.  It  has  been  well  as- 
serted that  if  a  liability  were  to  be 
inferred  from  the  mere  fact  of  a  fire 
and  damage,  it  would  make  railroad 
companies  insurers  against  all  fires 
occurring  along  the  road,  from  what- 
ever •  cause ;  and  if  the  same  thing 
were  to  be  presumed  from  the  bare 
fact  of  a  fire  set  by  sparks  from  an 
engine,  that  would  make  them  liable 
even  for  the  slightest  omission  or  neg- 
lect, or  for  mere  accident  or  misad- 
venture arising  from  the  act  of  God, 
the  operation  of  natural  causes,  or 
other  circumstances  beyond  their  con- 
trol, or  for  the  legitimate  exercise  of 
their  own  lawful  rights  and  powers, 
and  for  damages  within  the  principle 
of  damnum  absque  injuria.  The 
plaintiff  must  make  out  affirmatively 
a  prima  facie  case  of  liability. 

"  It  seems  to  be  supposed  that  a  dif- 
ferent rule  prevails  in  England,  which 
is  rather  to  be  preferred  on  the  score 
of  justice  and  good  policy.  Redf. 
Railw.  357.  Upon  examination  of  the 
authorities  referred  to,  we  do  not  find 
any  satisfactory  ground  for  this  distinc- 
tion. In  Aldridge  v.  Great  Western 
R.  R.  Co.  (3  Man.  &  Gr.  515)  the 
court  merely  refused  to  nonsuit  the 
plaintiff  on  the  case  made,  and  it  was 
distinctly  intimated  that  negligence 
was  no  more  to  be  presumed  from  the 
mere  fact  of  a  fire  set  by  sparks,  than 
from  the  fact  that  a  rick  of  beans  was 
placed  near  the  railroad,  and  that  '  to 
enable  the  plaintiff  to  recover  he  must 
show  some  carelessness,  or  lay  facts 
before  the  jury  from  which  it  may  be 
inferred.'     In   other  cases  there  was 


CHAP.  VII.] 


BURDEN   OF  PROOF. 


[§  361. 


alleged  to  have  been  sustained  bv  bim  through  another's  tributory 

.  .  .  negligence 

negligence,  should  show  that  his  own  negligence  was   to  be 

Droved  bv 

not  the  cause  of  the  disaster ;  ^  and  it  is  clear  that  a   the  de- 
plaintiff  may  be  nonsuited  if,  on  his  own  showing,  it    ^°'^^' 


strong  proof  of  actual  negligence,  as 
in  overtasking  the  engine  and  running 
it  without  any  kind  of  spark  arresters, 
though  such  inventions  were  then  in 
use  ;  Piggott  v.  Eastern  Counties  R. 
R.  Co.  Gr.  &  S.  (C.  B.)  229  ;  Hammon 
V.  Southeastern  R.  R.  Co.,  Maidst, 
Assiz.  1845;  Waif.  Railw.  182,  n.  c; 
or  in  running  engines  which  cast  forth 
sparks  in  a  dangerous  manner,  where 
the  embankment  of  the  railroad  was 
covered  with  inflammable  grasses, 
weeds,  and  peat,  without  having 
taken  any  steps,  on  previous  notice  of 
the  danger,  to  clear  the  combustible 
material  from  their  tracks ;  Vaughn  v. 
TafF  Vale  R.  R.  Co.  3  Hurl.  &  Nor. 
742  ;  and  these  cases  are  not  inaptly 
likened  to  the  old  cases  of  a  man  rid- 
ing an  unruly  horse  into  Lincoln's  Inn 
Fields  (1  Vent.  205),  or  suffering  a 
mad  bull  (1  Lutw.  36),  or  a  biting  dog 
(2  Str.  J2G4),  or  '  a  thing  intrinsically 
dangerous,'  to  go  at  large,  with  a 
scienter.  But  it  cannot  be  fairly 
maintained  or  assumed  that  all  rail- 
road engines  are  of  that  character,  or 
that  any  particular  one  is  to  be 
brought  within  that  category,  with- 
out evidence  clearly  showing  the  fact 
to  be  so,  or  that  there  was  actual  neg- 
ligence in  the  manner  and  under  the 
circumstances  in  which  it  was  em- 
ployed on  that  particular  occasion. 
*'  In  Bass  v.  Chicago,  Burl.  &  Quincy 


1  Lane  u.  Crombie,  12  Pick.  177; 
Murphy  v.  Deane,  101  Mass.  466  ; 
AUyn  V.  R.  R.  105  Mass.  77;  Birge  v. 
Gardiner,  19  Conn.  507;  Evansville 
R.  R.'v.  Hiatt,  17  Ind.  102  ;  Galena 
R.  R.  V.  Fay,  16  111.  558  ;  Donaldson 


R.  R.  Co.  28  111.  9,  a  demurrer  was 
overruled  to  a  declaration  charging 
that  the  acts  complained  of  had  been 
carelessly  and  negligently  done,  and 
stating  a  very  strong  case  of  actual 
negligence  on  the  part  of  the  defend- 
ant ;  and  the  opinion  of  the  court, 
while  conceding  the  result  of  the 
American  authorities,  supposes  that  a 
moi-e  stringent  rule  prevails  in  Eng- 
land, and  one  which  was  thought  to 
be  more  in  accordance  with  justice 
and  the  policy  indicated  by  the  stat- 
utes of  some  states.  However  this 
may  be,  until  the  legislature  sees  fit 
to  change  the  law  on  the  subject,  we 
must  be  guided  by  the  established 
principles  governing  the  case. 

"  In  Ellis  V.  Portsm.  R.  R.  R.  Co. 
2  Iredell,  138,  the  court  below  had 
charged  the  jury,  that  if  they  believed 
the  plaintiff's  fences  were  burned  by 
fire  from  the  engines,  the  defendant 
was  liable;  but  on  appeal,  Gaston,  J., 
expressly  declared  that  the  gravamen 
of  the  complaint  was,  that  the  damage 
was  caused  by  the  negligence  of  the 
defendant,  and  that  the  court  did  not 
sanction  the  doctrine  laid  down  in  the 
charge  ;  but  it  was  held  tliat  when  the 
plaintiff  shows  damage  resulting  from 
an  act  which,  '  with  the  exertion  of 
proper  care,  docs  not  ordinarily  pro- 
duce damage,  he  makes  a  prinid  facie 
case  of  negligence.'     This  case,  like 


V.  R.  R.  18  Iowa,  280  ;  Baird  v.  Mor- 
ford,  29  Iowa,  531  ;  Muldowney  v.  R. 
R.  32  Iowa,  176  ;  Patterson  v.  R.  R. 
38  Iowa,  279  ;  Lake  Shore  R.  R.  i'. 
]\Iillcr,  25  Mich.  274  ;  Jones  v.  R.  R. 
67  N.  C.  122. 

323 


§  361.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


appear  tliat  the  disaster  was  brought  on  by  himself.^     But  if  he 
makes  out  a  case  of  negligence  on  part  of  the  defendant,  and  the 


that  of  Hull  V.  Sacr.  Val.  R.  R.  Co. 
14  Cal.  387,  in  which  there  was  evi- 
dence showing  that  the  result  was  not 
probable  from  the  ordinary  working 
of  the  engine,  may  be  said  to  go  to 
the  extreme  verge  of  the  law  in  sus- 
taining a  verdict,  on  the  ground  that 
there  was  some  evidence  to  support  it; 
but  they  do  not  justify  the  proposition 
that  negligence  is  ever  to  be  presumed 
in  these  cases  as  a  matter  of  law,  nor 
as  a  matter  of  i'act,  without  some  evi- 
dence from  which  the  fact  of  actual 
neslisence,  causing  the  damage,  might 
rationally  be  inferred." 

Of  this  view,  however,  we  have 
subsequently  the  following  modifica- 
tion: "  Firstly,  the  jury,  in  order  to 
charge  the  defendant,  must  find  affirm- 
atively that  the  fire  escaped  from  the 
smoke-stacks  of  its  engine,  through 
the  negligence  of  its  agents  or  ser- 
vants. Smith  V.  R.  R.  37  Mo.  287. 
The  burning,  the  damage,  the  escape 
of  the  fire,  and  the  negligence,  are  all 
facts  to  be  charged  and  proved.  But 
they  must  be  proved  like  all  other 
facts,  by  such  evidence  as  shall  satisfy 
a  reasonable  mind  of  their  existence. 
It  is  sometimes  said  that  negligence  is 
presumed  from  the  escape  of  the  fire. 
111.  Cent.  R.  R.  Co.  v.  Wells,  42  111. 
407.  But,  while  this  can  hardly  be 
called  a  presumption,  as  the  term  is 
generally  used,  it  may  be  a  fair  and 
reasonable  inference.  The  language 
of  Judge  Holmes,  in  Smith  v.  R.  R. 
295,  is  very  strong,  and  liable  to  mis- 
construction, unless  compared  with  the 
case  and  the  rest  of  the  opinion.    If 


the  plaintiff  were  required  to  prove 
affirmatively  and  specifically  the  con- 
dition of  the  particular  smoke-stack 
from  which  the  fire  escaped,  —  if  he 
were  bound  to  show  the  specific  neg- 
ligence that  permitted  its  escape,  — 
it  would  be  equivalent  to  denying 
him  relief  altogether.  The  farmer, 
along  whose  field  the  train  flies,  from 
the  nature  of  the  case,  can  know  noth- 
ing about  these  things.  He  cannot 
know  the  engine,  nor  can  he  tell  the 
contrivances  needed,  used,  or  neglect- 
ed. All  that  he  can  in  most  cases 
show  is  that  the  fire  escaped  and  de- 
stroyed his  property.  It  is  an  infer- 
ence of  reason  that  fire  should  not  so 
escape.  When  as  dangerous,  as  well 
as  useful,  an  instrument  of  locomotion 
as  a  steam  locomotive  is  used,  its  man- 
agers are  bound  to  a  care  and  precau- 
tion commensurate  with  the  danger. 
They  have  a  right  to  use  the  instru- 
ment, but  have  no  right  to  scatter  fire 
along  their  track ;  and  when  it  is 
found  that  this  is  done,  with  no  ex- 
planation of  the  cause,  the  jm-y  is.  war- 
ranted in  inferring  that  there  has  been 
some  neglect.  To  rebut  that  reason- 
able inference,  the  defendant  should 
show  that  the  best  machinery  and 
contrivances  were  used  to  prevent  such 
a  result,  and  that  careful  and  compe- 
tent servants  were  employed.  Vaughn 
V.  Taff  Vale  R.  R.  3  Hurlst.  &  N.  f43; 
same  case  on  review  in  5  Hurlst.  &  N. 
679;  Freemantle  v.  London  &  N.  W. 
R.  R.  10  C.  B.  N.  S.  19."  Bhss,  J., 
Fitch  V.  R.  R.  45  Mo.  362. 

In  1875,  the  same  court  appears  to 


^  Holden  v.  Liverpool,  3  C.  B.  1  ; 
Brown  v.  R.  R.  58  Me.  384 ;  Gahagan 
V.  R.  R.  1  Allen,  187  ;  Brooks  v. 
Somerville,  106  Mass.  271  ;  Haring 
V.  R.  R.  13  Barb.  9  ;  Gillespie  v.  N. 

324 


Y.  54  N.  Y.  468  ;  Hays  v.  Gallagher, 
72  Penn.  St.  140;  Central  R.  R.  v. 
Moore,  4  Zabr.  824  ;  Langhoff  v.  R. 
R.  19  Wise.  497  ;  Rothe  v.  R."  R.  21 
Wise.  256. 


CHAP.  VII.] 


BURDEN  OF  PROOF. 


[§  362. 


defendant  then  undertakes  to  prove  that  the  plaintiff's  negligence 
was  the  primary  cause,  this  is  a  defence  which,  on  the  principles 
previously  stated,  the  burden  is  on  the  defendant  to  prove. ^ 

§  362.  When  a  person  who  contracts  to  perform  a  particular 
duty  to  another  person  or  thing  is  sued  for  negligent    in  a  suit 
injury  to  such  person  or  thing,  then  the  plaintiff  need    f  ™"f''' 
only  prove  the  iniury :  and  the  burden  is  on  the  de-   peiform- 

■^     ^  .  .  ance  of 

fendant  to  excuse  himself  by  proof  of  the  exercise  of  contract 
due  diligence.  What  such  diligence  is,  depends  upon  tiff  need 
the  nature  of  the  contract,  as  elsewhere  discussed.  u"e'fa'Huro 
That  it  must  be  proved  as  an  excusatory  defence  by  |i"J'coi°'^™ 
the  defendant,  and  that  the  burden  is  on  him  to  do  so,  'fact, 
is  plain.  The  defendant  has  engaged  to  perform  a  particular 
duty,  and  the  tort  consists  in  the  non-performance  of  such  duty. 
That  the  defendant  failed  to  perform  his  duty  through  neg- 
ligence, is  not  part  of  the  plaintiff's  case.  The  plaintiff,  it  is 
true,  in  proving  the  non-performance  of  duty  by  the  defendant, 
may  bring  out  such  incidents  as  show  negligence  on  the  part  of 
the  defendant.  But  it  is  not  a  necessity  of  the  plaintiff's  case 
to  do  this  ;  and  if  the  defendant  desire  to  relieve  himself,  by 
showing  a  due  performance  of  duty,  he  must  do  so,  eitlier  by 
directly  traversing  the  plaintiff's  case  as  to  the  fact  of  injury,  or 
by  proving  (and  the  burden  is  on  the  defendant  to  do  this)  that 
the  injury  occurred  without  his  particular  fault.  A  creditor, 
for  instance,  receives  a  piece  of  silver  plate  in  pawn.     If  this 


abandon  Judge  Holmes's  reasoning, 
and  to  hold  that  the  scattering  of  fire 
being  proved,  the  company  must  dis- 
prove negligence. 

"  The  law,  as  settled  in  this  state, 
is,  that  where  it  is  proved  that  the 
property  was  destroyed  by  fire  escap- 
ing from  the  defijndant's  engine,  a 
prima  facie  case  of  negligence  is  made 
out;  that  the  burden  is  then  thrown 
on  the  defendant,  by  its  evidence,  to 
rebut  the  presumption  of  negligence 
by  showing  the  absence  of  negligence. 
Whether  this  is  done  by  the  evidence 
is  a  (juestion  for  the  jury,  which  can 
be  decided  by  them  without  shifting 
the  burden  from  one  party  to  the  other. 


as  the  evidence  progresses,  and  as 
seems  to  be  contemplated  by  the  in- 
struction refused.  BedfonI  v.  Ilann. 
&  St.  Jo.  R.  R.  46  Mo.  45G;  Clemens 
V.  R.  R.  53  Mo.  3G6,  and  case  cited." 
Vories,  J.,  Coalc  i'.  R.  R.  liO  Mo.  235. 
1  Railroad  Co.  v.  (iladmon,  15 
Wall.  401  ;  Sheldon  r.  R.  R.  'JD  Rarb. 
22G  ;  Oldfield  r.  R.  R.  14  N.  Y.  310; 
Johnson  i-.  R.  R.  20  N.  Y.  05  ;  Wilds 
I'.  R.  R.  24  N.  Y.  430  ;  Phil.  &  Road. 
R.  R.  V.  Yeiger,  8  Barr,  3GC;  Huyett 
V.  R.  R.  23  Penn.  St.  373;  Cleve.  & 
P.  R.  R.  V.  Rowan,  06  Penn.  St.  393; 
Freeh  r.  R.  R.  ;{!•  Md.  574  ;  Smith  f. 
R.  R.  .{7  Mo.  287  ;  Thompson  v.  R.  R. 
51  Mo.  190. 

325 


§  363.]  THE   LAW   OF  EVIDENCE.  [BOOK  H. 

is  lost,  without  any  culpa  on  his  part,  he  must  prove  this  fact,  in 
order  to  be  released  from  liability.^  A  herd  of  goats  are  taken 
by  a  herdsman  to  pasture.  They  are  carried  off  by  robbers, 
without  the  fault  of  the  herdsman.  It  is  not  necessary  for  the 
owner  to  prove  want  of  due  care  in  the  herdsman  ;  but  the  bur- 
den is  on  the  herdsman  to  prove  that  the  loss  of  the  herd  was 
not  due  to  want  of  care  by  himself.^  Suppose,  again,  goods 
are  hired  by  H.  from  L.,  and  when  in  H.'s  possession  are  dam- 
aged, either  through  defects  existing  in  the  goods  when  in  H.'s 
possession,  or  through  H.'s  misconduct.  If  the  views  above 
given  be  correct,  the  burden  is  on  H.,  when  sued  for  the  loss,  to 
show  either  that  the  loss  was  due  to  causes  involving  no  miscon- 
duct on  his  part,  or  to  defects  inherent  in  the  goods  at  the  time 
they  were  hired.  If  he  cannot  make  out  such  a  defence,  he  is 
bound  to  indemnify  the  owner.  It  is  true,  as  has  been  argued, 
that  it  is  a  fraud  in  the  owner  of  goods,  when,  knowing  them  to 
have  latent  defects  which  will  cause  their  depreciation  or  loss, 
to  withhold  notice  of  such  defects  from  the  hirer.^  But  to  this  it 
is  pertinently  replied,  that  business  would  be  brought  to  a  stand- 
still, if  the  owner  of  goods,  in  a  suit  for  injuries  sustained  by 
them,  was  compelled  to  prove  that  which,  from  the  nature  of 
things,  he  could  rarely  be  able  to  do,  that  the  goods  when  they 
left  his  possession  were  free  from  latent  faults.*  Public  policy, 
in  such  case,  unites  with  juridical  principle  in  requiring  the 
defendant  (i.  e.  the  party  undertaking  by  contract  to  do  a  par- 
ticular thing)  to  show,  when  sued  on  the  contract,  either  that 
the  thing  was  done  by  him,  or  that  he  has  good  grounds  of 
excuse.^ 

§  863.  If,  in  cases  of  bailment,  the  plaintiff,  suing  in  tort,  al- 
Rule  is  al-  leges  negligence  in  his  declaration,  is  the  burden  on 
*®/^*^ Ji*^"^®   him  to  prove  such  neglisrence  ?     The  Roman  law  an- 

plaintifi  \  .         . 

sues  in         swers  this  question  in   the  negative,  though  it  is  ad- 
mitted that,  in  the  strict  order  of  proof,  such  burden 
may  lie  on  the  plaintiff  in  his  replication.     The  plaintiff,  for  in- 


1  L.  5,  C.  de  pig.  act.  (iv.  24.)  ^  Chicopee  Bank  v.  Phil.  Bank,  8 

2  L.  9,  §  4,  D.  loc.  xix.  2.  Wall.  641  ;  The  Live  Yankee,  Deady, 

*  See  Garve's  criticism  on  Paley's  420 ;  McGregory  v.  Prescott,  5   Cush. 
Mor.  Phil.  ii.  512.  67  ;  Murrell  v.  Whiting,  32  Ala.  54. 

*  See  Weber,  Heffter's  ed.  177.  See  ^Tiart.  on  Neg.  §  421. 

326 


CHAP.  VII.]  BURDEN   OF   PROOF.  [§  363. 

stance,  alleges  a  negligent  loss  of  goods  ;  tinder  this  allegation 
it  is  enough  to  prove  that  the  goods  were  not  restored  to  the 
plaintiff  on  demand.  Or  the  defendant  proves  casus  as  a  de- 
fence. If  the  plaintiff  desires  to  avoid  this  defence  by  showing 
that  the  casus  was  induced  by  the  defendant's  negligence,  then 
the  burden  is  on  the  plaintiff  to  prove  such  inculpatory  negli- 
gence on  the  part  of  the  defend  ant. ^  But  though  this  conclu- 
sion may  be  logically  correct,  and  though  it  has  received  occa- 
sional approval  from  the  courts,^  yet  it  must  now  be  regarded  as 
the  better  opinion,  that  if  a  bailor  elects  to  sue  a  bailee  in  tort, 
and  avers  tort,  and  claims  damages  for  tort,  he  must  in  all  cases 
in  which  the  evidence  shows  a  loss  for  which,  primd  facie, 
the  bailee  is  not  liable,  prove  the  tort  he  avers.  It  is  true 
that  the  proof,  especially  when  the  suit  is  for  negligence,  need  be 
but  slight.  The  mere  circumstances  attending  the  injury,  when 
put  in  proof,  may  be  enough  to  throw  the  burden  of  exculpation 
on  the  defendant.  But  something,  however  slight,  there  must 
be  in  the  plaintiff's  case  from  which  negligence  may  be  inferred, 
or  the  plaintiff  may  be  nonsuited.^  No  doubt  in  such  case,  as  in 
all  other  cases  against  bailees,  the  burden  is  on  the  bailee,  when 
sued,  to  prove  such  a  loss  as  would  exonerate  him.  "  The  bur- 
den of  the  proof  of  the  loss,  which  brings  the  carrier  within  the 
restriction  of  his  contract,"  as  has  been  well  stated,*  "  lies  on 
him  ;  but  when  he  has  proved  such  a  loss,  unattended  by  cir- 

1  See,  also,  Chicopee  Bank  c.  Phil.  Co.  52  Mo.  390;  Harnden  v.  Nav.  Co. 
Bank,  8  Wall.  641;  Patterson  v.  G  How.  344  ;  Trans.  Co.  r.  Downer,  11 
Clyde,  67  Penn.  St.  500;  ^Vliart.  on  Wall.  134  ;  Lamb  v.  R.  R.  46  N.  Y. 
Neg.  §  422;  Story  on  Bailments  271 ;  Russell  r.  St.  Co.  50  N.  Y.  121  ; 
(Bennett's  ed.),  §  410.  Bell  v.  Reed,  4  Binn.  127  ;  Farnham 

2  See  Cass  v.  R.  R.  14  Allen,  448  ;  v.  R.  R.  55  Penn.  St.  53  ;  Empire 
Piatt  y.  Hibbard,  7  Cow.  497;  West-  Trans.  Co.  v.  Wamsutta  Oil  Co.  63 
cott  V.  Fargo,  63  Barb.  349;  and  see  Penn.  St.  17  ;  Patterson  v.  Clyde,  67 
Mackenzie  v.  Cox,  9  C.  &  P.  632.  Penn.  St.   500 ;  Graham   v.  Davis,  4 

8  Marsh  v.  Home,  5  B.  &  C.  323  ;  Oh.    St.   362.     See,   also,   Abbott  on 

Gilbart  v.  Dale,  5    Ad.    &   El.  543  ;  Ship.    390  ;  Story  on  Bailm.  §  573  ; 

Harris  v.   Packwood,  3   Taunt.   2G7  ;  Addison   on    Torts  (ed.   of   1876),  § 

Carpue  v.  R.  R.  5  Q.  B.  751  ;  Butt  v.  546. 

R.  R.  11  C.  B.  140;  Midland  R.  R.  v.         *  Agnew,  C.  J.,  Patterson  r.  Clyde, 

Bromley,  17  C.  B.  372  ;  Finucane  c.  67   Penn.  St.  500,  aflirming  Farnham 

Small,  1   Esp.    316  ;  Steele  v.  Town-  v.  R.  R.  65  Penn.  St.  53. 
send,  37  Ala.  247;  Ketchum  v.  Exp. 

827 


§  366.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


y 


against 
bailees, 
on  bail- 
ment, suffi- 
cient for 
plaintiff  to 
prove  bail- 
ment. 


cumstances  indicating  negligence,  the  onusi  of  the  proof  of  neg- 
ligence is  cast  upon  the  plaintiff." 

§  364.  What  has  just  been  said  applies  to  torts  in  which  the 
In  actions  case,  as  presented,  exhibits  a  loss  for  which  primd  facie 
the  bailee  is  not  liable.  It  is  scarcely  necessary  to  add 
that  in  contracts,  when  no  such  primd  facie  exemption 
is  shown,  the  burden  of  exculpation  is  on  the  bailee.  A 
bailee,  being  required  by  the  terms  of  his  bailment  to 
restore  the  bailed  article,  if  sued  for  the  same  ;  when 
the  bailment  is  proved,  has  the  burden  on  him  to  prove  that  he 
is  discharged  from  his  liability.^ 

§  365.  That  impossibility  or  casus  must  be  proved  by  the  de- 
fendant has  been  already  incidentally  stated.  A  bailee, 
for  instance,  who  is  sued  for  damage  done  to  his  bailor's 
property,  has  the  burden  on  him  of  proving  that  the 
damage  was  done  through  casus,  should  he  set  up  such 
a  defence.2  If  the  defence  be  proved,  the  plaintiff,  if  he  reply 
that  the  impossibility  or  casus  was  induced  by  the  defendant's 
misconduct,  must  prove  such  misconduct. 

§  366.  So  far  as  good  faith  and  legality  are  assumed  as  belong- 
Burden  on  ing  to  Ordinary  business  transactions,^  it  may  be  gen- 
saiiing*^"  erally  held  that  the  burden  of  proof  is  on  the  party  as- 
orle^my.    mailing  good  faith  or  legality ;  *  though  not  as  to  a  trans- 


Burden  of 

proving 
casus  is  on 
party  set- 
ting it  up. 


^  Garside  v.  Proprietors,  4  T.  R. 
581  ;  Chicopee  Bk.  v.  Phil.  Bk.  8 
Wall.  641  ;  Lamb  v.  R.  R.  7  Allen, 
98;  Cass  v.  R.  R.  14  Allen,  448; 
Arent  v.  Squire,  1  Daly,  347;  Price  v. 
Powell,  3  N.  Y.  322 ;  Illinois  R.  R.  v. 
Cowles,  32  III.  116  ;  Day  v.  Raguet, 
14  Minn.  273  ;  Beckman  v.  Shouse,  5 
Ravrle,  179  ;  Humphrey  v.  Reed,  6 
Whart.  435 ;  Whitesides  v.  Russell,  8 
W.  &  S.  44. 

2  See  Whart.  on  Neg.  §  128,  and 
cases  cited  supra,  §  356-7. 

8  See  infra,  §  1248. 

*  Huchberger  v.  Ins.  Co.  5  Bissel, 
106;  Jordan  v.  Dobson,  2  Abb.  U.  S. 
398;  Cooper  v.  Galbraith,  3  Wash.  C. 
0.  546  ;  Rockville  Co.  v.  Van  Ness,  2 
Cranch  C.  C.  449  ;  Hager  v.  Thomson, 

328 


1  Black,  80;  Blaisdellr.  Cowell,  14  Me. 
370;  New  Portland  v.  Kingfield,  55 
Me.  172;  Jay  v.  Carthage,  48  Me.  353; 
Winslow  V.  Gilbreth,  50  Me.  90;  Brad- 
ish  V.  Bliss,  35  Vt.  326  ;  Packard  v. 
Clapp,  11  Gray,  124;  Beatty  v.  Fishel, 
100  Mass.  448;  Salmon  v.  Orser,  5 
Duer,  511;  Marsh  v.  Falker,  40  N. 
Y.  562;  Vanderveer,  in  re,  20  N.  J. 
Eq.  463  ;  Tarden  i-.  Davis,  5  Whart. 
R.  338;  Roberts  v.  Guernsey,  3  Grant 
(Penn.),  237;  Hutchinson  i>.  Boggs,  28 
Penn.  St.  294;  Horan  v.  Weiler,  41 
Penn.  St.  470;  Calvert  v.  Carter,  18 
Md.  73;  Vathir  v.  Zane,  6  Grat.  246; 
Wilson  V.  Lazier,  11  Gratt.  477;  Shee- 
han  V.  Davis,  17  Oh.  St.  571;  Ew- 
ing  V.  Gray,  12  Ind.  64  ;  Mahony  v. 
Hunter,  30  Ind.  246;  Sutphen  v.  Cush- 


CHAP.  VII.]  BURDEN   OF   PROOF.  [§  367. 

action  in  itself  unfair.^  Thus  unfairness  will  be  inferred  as  to 
sales  to  a  client  from  a  counsel,  or  to  a  principal  from  a  confiden- 
tial agent ;  and  the  burden  is  on  the  party  taking  under  such 
sale  to  prove  its  fairness.^  So  there  is  no  presumption  of  good 
faith  which  will  sustain  a  concession  to  a  wrono;-doer  from  the 
party  injured.^ 

§  367.  It  has  been  sometimes  said  that  when  a  fact  is  pecul- 
iarly within  the  knowledge   of  a  party,  the  burden  is 
on  him  to  prove  such  fact,  whether  the  proposition  be   on  party  to 
affirmative  or  negative.^     Thus  where  proceedings  were   J^j's  his 
taken  for  the  contravention  of  an  order  of  the  English    '^"ty  to 

.  .  .    "  prove. 

privy  council  under  the  Contagious  Diseases  (animals) 
Act  of  1869,  ordering  that  a  person  having  in  his  possession  ani- 
mals affected  with  any  contagious  disease,  should  with  all  practi- 
cable speed  give  notice  of  the  fact  to  a  police  constable,  it  was 
held  by  the  court  of  common  pleas  that,  on  proof  of  the  exist- 
ence of  the  disease  to  the  defendant's  knowledge,  the  onus  lay 
upon  him  of  showing  that  he  gave  the  necessary  notice.^  So 
it  is  said,  that  where  a  creditor  shows  facts  that  raise  a  strong 
presumption  of  fraud  in  a  conveyance  made  by  his  debtor,  the 
history  of  which  is  necessarily  known  to  the  debtor  only,  the 
burden  of  proof  lies  on   him  to  explain  it ;  his  estate  being  in- 

man,  35  111.  18G;  Reed  v.  Noxon,  48         2  Clarke  v.  Lamotte,  15  Beav.  240; 

111.   323  ;    Bullock  v.  Narrott,  49  111.  Walker  v.  Smith,  29  Beav.  390;  Low- 

62;  Thompson    v.  Wharton,   7  Bush,  ther  y.  Lowther,  13  Ves.  103;  Dunne 

563;  Evans  i'.  Evans,  2  Coldw.  143;  v.  English,   L.    R.    18  Eq.  524;  Wis- 

Habersham  v.  Hopkins,  4  Strobh.  238;  tar's  Appeal,  54  Penn.  St.  60;  Brown 

Sheffield  v.  Parmlee,  8  Ala.  889  ;  Ross  v.  Bulkley,  13  N.  J.  Eq.  451 ;  Uhlich 

V.  Drinkard,  35  Ala.  434;  Greenwood  v.  Muhlke,  61  111.499.     And  see  cases 

V.   Lowe,  7   La.   An.    197;  Martin  v.  in  Wliart.  on  Agency,  §  232. 
Drumm,   12   La.    An.    494;   Corcoran         »  Infra,  §1264;  Looniis  c.  Green,  7 

V.  Sheriff,  19  La.  An.  139;  Silvers  v.  Grcenl.  386;  Costigan  v.  Mohawk  R. 

Hedges,  3  Dane,  439;  Sutter  t'.  Lack-  R.  2   Denio,  609  ;   Finn   i-.  Wharf  Co. 

man,     39    Mo.    91;    Waddingham   v.  7  Cal.  253. 

Loker,  44M0.  132;  Bumpus  v.  Fisher,         *  Apoth.  Co.  r.  Bontlcy,  Ry.  &  M. 

21  Tex.  561.  159;   Great  West.  R.  R.  v.  Bacon,  30 

1  Loomis  I'.  Green,   7  Greenl.  386;  111.    347;  Ford   v.    Simmons,    13   La. 

Short  y.  Staple,  1  Gall.  104  ;  Easter  r.  An.    397.     See   limitations   of    above 

Allen,8  Allen,  7  ;  Costigan  r.  Mohawk  in  Chaffee  v.    U.    S.,  quoted  infra,  § 

Co.  2  Dcnio,  609;  Barnawell  r. Thread-  371. 

gill,  3  Jones   N.  C.  (Etp)  50;  Hair  v.         ^  Iluggins  v.  Ward.  21  W.  R.  914; 

Little,  28  Ala.  236  ;   Shcils  v.  West,  17  Powell's  Evidence,  4th  ed.  293. 
Cal.  324;  Paxton  v.  Boyce,  1  Tex.  317. 

329 


§  368.]  .    THE  LAW   OF  EVIDENCE.  [BOOK  II. 

solvent.^  It  has  been  further  held  that  when  a  person  who  is 
able  to  exercise  dominion  over  another  takes  a  benefit  from  him, 
such  person  must  prove  that  the  transaction  was  a  rigliteous  one,^ 
and  that  the  gift  was  intended  to  be  given. '^  Another  illustra- 
tion of  the  rule  is  to  be  found  in  the  practice  of  treating  a  deed 
or  instrument,  which  is  j)'>'i'>nd  facie  good,  as  what  it  purports  to 
be,*  and  the  onus  of  proving  that  it  is  not  what  it  purports  to  be. 
or  that  it  is  invalid,  rests  upon  the  party  impeaching  it.^  Again, 
"  where  there  is  primd  facie  evidence  of  any  right  existing  in 
any  person,  the  onus  prohandi  is  always  upon  the  person  or 
party  calling  such  right  in  question."  ^  So  on  the  principle  that 
where  an  act  is  tainted  apparently  with  illegality,  the  party 
justifying  it  must  disprove  its  illegality,  a  defendant  in  libel, 
who  pleads  a  fair  report  of  proceedings  in  a  court  of  justice, 
must  prove  the  correctness  of  the  report.'' 

§  368.  Much  difficulty  arises  in  determining  as  to  who  has  the 

T .  ^  burden  of  proof  when  the  question  is,  whether  a  person 
License  to  '^  ^  i_  _'  _  ^ 

be  proved     who  is  sucd  for  doing  a  particular  thing  without  license, 

by  the  .  ... 

party  to  lias  a  license.  On  the  one  side  it  is  argued  that  as 
proof  is  a  license  is  particularly  within  the  knowledge  of  the 
essentia .  -^^o^tj  holding  it,  the  burden  is  on  him  to  produce  such 
license,  in  all  cases  in  which  the  existence  of  the  license  is  in 
question.^  On  the  other  hand,  it  is  insisted  that  as  the  non- 
existence of  the  license  is  essential  to  the  case  of  the  assailant,  it 
is  proper,  if  we  follow  the  rules  already  announced,  to  hold  that 
non-license  must  be  proved  by  the  party  to  whose  case  such 
proof  is  essential.^     In  many  jurisdictions  the  doubt  has  been 

1  Clements  I'.  Moore,  6  Wall.  299.  »  Smith   v.  Jeffries,  9    Price,    257; 

2  Cooke  V.  Lamotte,  15  Beav.  240.  Morton   v.   Copeland,   16   C.  B.   517; 

3  Walker  v.  Smith,  29  Beav.  396  ;  Bluck  v.  Rackman,  5  Moo.  R.  C.  305, 
c£.  Turner  v.  Collins,  L.  R.  7  Ch.  329;  314  ;  R.  v.  Turner,  5  M.  &  Sel.  205  ; 
41  L.  J.  Ch.  558;  20  W.  R.  305,  and  U.  S.  v.  Hayward,  2  Gall.  485  .  State 
supra,  §  266.  Powell's  Evidence,  4th  v.  Crowell,  25  Me.  174;  State  v.  Me- 
ed. 291.  Glynn,  34  N.  H.  422;   Bliss  v.  Brain- 

*  Jacobs  V.  Richards,  18  Beav.  303.  erd,  41  N.  H.  256  ;  Garland  v.  Lane, 

6  Nichol  V.  Vaughan,  1  CI.  &  F.  49;  46  N.  H.  245  ;  Wheat  v.  State,  6  Mo. 

Powell's  Evidence,  4th  ed.  292.  455;    Medlock  r.  Brown,  4  Mo.  379; 

^  Banbury  Peerage  case,  1  S.   &  S.  State  v.  Lipscomb,  52  Mo.  32. 
155.  9  Com.  V.  Thurlow,   24  Pick.  374; 

''  Lewis    V.    Levy,    E.,     B.    &    E.  Kane  r.  Johnston,  9Bosw.  154;  State 

557.  I'.  Evans,  5  Jones  N.  C.  250;  Mehan 
330 


CHAP.  VII.]  BURDEN   OF  PROOF.  [§  370. 

removed  by  statute.  At  common  law  it  would  seem  that  where 
licenses  are  rare  and  exceptional,  then  we  may  hold  that  the  im- 
probability of  a  license  in  each  particular  case,  taken  in  con- 
nection with  the  rule  that  a  party  must  produce  all  evidence 
peculiarly  within  his  own  knowledge,  may  throw  on  the  defend- 
ant the  burden  of  proving  license.  But  under  such  circumstances 
it  has  been  held  that  where  a  party  has  the  burden  of  proving  a 
negative,  full  proof  "is  not  required,  but  even  vague  proof,  or 
such  as  renders  the  existence  of  the  negative  probable,  is  in  some 
cases  sufficient  to  change  the  burden  to  the  other  party."  ^ 

§  369.  Questions  of  interest  arise  when  suit  is  brojight  upon  a 
document  to  whose  validitv  certain  formalities  are  re-   ^    ,      , 

J  Burden  of 

quisite.     Is  the  plaintiff,  or  the  defendant,  to  prove  such   proving 

..  formalities 

formalities  ?  It  is  plain  that  when  the  law  makes  the  on  him  to 
validity  of  the  document  depend  upon  these  formali-  are'^essen-'^ 
ties,  then  they  must  be  duly  proved  by  the  plaintiff.  *'*' 
If  a  statute,  for  instance,  makes  a  document  inoperative  unless 
duly  registered  or  stamped,  then  the  document  cannot  be  put  in 
evidence  without  proof  of  such  registry  or  stamp.  But  a  prlmd 
facie  compliance  with  the  law  in  this  respect  is  sufficient  for 
the  plaintiff's  case.^  If  the  document  is  on  its  face  duly  exe- 
cuted, then  it  will  be  presumed  ^  that  the  execution  was  regular, 
and  the  burden  of  contesting  the  execution  falls  on  the  party 
assailing  the  document. 

§  370.  As  a  general  rule,  we  may  hold  that  where  a  party  un- 
dertaking to  prove  a  case  fails  in  such  proof,  the  judg-    importance 
ment  must  be  against  him.     Adore  non  probante,  reus   gg  to'bur"" 
dbsolvitur.     The   following   exceptional  cases  may  be   '^*^°' 
here  noticed  :  *  — 

1.  The  party  on  whom  lies  the  burden  may  not  make  out  his 

V.  State,  7  Wise.  670;  State  v.  Hirsch,  Com.  v.  Leo,  110  I^Iass.  411;  Com.  v. 

45  Mo.  429;  State  v.  Richeson,  45  Mo.  Shea,  115  Mass.  102. 

575.    In  Massachusetts,  under  the  Stat-  ^  People   v.  Tease.  27    N.   Y.   45; 

ute  of   1864,  "if  the  defendant  was  Commonwealth  v.   Bradford,  0  Mete 

proved  to  have  kept  intoxicating  liq-  268  ;  1   C.roenl.    Ev.  §  80.     Sheldon, 

uors  for  sale,  the  burden  of  ])roving  J.,  Beardstown  v.  Virjiinia,  76  111.44. 

that  he  had  a  license  or  authority  so  ^  Weber,  Ileffter's  ed.  192. 

to  do  was  upon  him."     Gray,  C.  J.,  ^  Intra,      Lll.*?. 

Com.  V.  Curran,  119  Mass.  206,  citing  *  See  these  points  made  by  HefTter, 

Com.    V.    Kennedy,   108   Mass.   292  ;  App.  to  Weber,  297. 

331 


§  371.]  THE  LAW   OF   EVIDENCE.  [BOOK  II. 

case,  but  the  deficient  proof  may  be  collected  from  the  evidence 
offered  by  the  opposite  side.  The  actor  may  have  failed  in  his 
task  of  presenting  evidence  to  sustain  his  claim  ;  he  may  be  lia- 
ble to  be  nonsuited,  should  he  be  plaintiff ;  but  if  by  the  op- 
posite side  the  requisite  proof  is  supplied,  then  the  adjudicating 
tribunal  must  decide  on  the  whole  case,  —  Ex  fide  eorum  quae 
probabantur. 

2.  An  actor  in  his  own  proof  shows  that  there  is  a  hindrance 
which  per  se  prevents  a  right  of  action  from  accruing  to  him  ; 
e.  g.  when  he  produces  a  will  which  on  its  face  is  that  of  a  child 
under  fourteen  years  of  age.  In  such  case  the  burden  being  on 
him  to  make  out  his  case,  and  he  having  failed,  no  burden  what- 
ever is  imposed  on  the  opposing  party. 

3.  Ah  actor  presents  a  case  to  which  there  appears,  on  its  face, 
a  hindrance  which  is  only  good  when  set  up  by  the  opposite  side. 
In  such  case,  unless  the  opposite  side  set  up  the  hindrance,  the 
actor's  case  is  proved. 

§  371.  We  shall  have  occasion  hereafter  to  discuss  the  effect 
of  a  presumption  of  fact  as  an  element  of  proof.^     It  is 

Court  may  ...  , 

instruct  Sufficient  at  this  point  to  say  that  when  a  presumption 

presump-  of  fact  exists  against  a  party,  the  court  may  instruct 

makes  a*'^  '^^  J^^T  ^^^*^  ^^  burden  is  on  the  party  to  remove  the 

casrV^''*^  presumption,  and  that  if  he  does  not,   then  the   case 

which  they  must,  ill  a  civil  issue,  go  against  him  on  such  point.^ 
are  bound.      _^,  .  '   ^  .   .  .     .  .  , 

The  question  of  burden  of  proof  in  criminal  issues  be- 
longs to  an  independent  treatise.^  It  may  be,  however,  here 
generally  noticed  that  in  penal  prosecutions  of  all  classes,  the 
doctrines  above  stated,  however  applicable,  are  not  permitted  to 
interfere  with  the  cardinal  principle  that  the  jury  must  acquit 
when  they  have  a  reasonable  doubt  of  guilt.* 

^  See  infra,  §§  1226-36.  "It  remains  to  consider  the  excep- 

^  Crane  if.  Morris,   6   Peters,   598;  tions  taken  to  the  charge  to  the  jury. 

Kelly  V.  Jackson,  6  Peters,  622;  U.  S.  These  are  sixteen  in  number,  and  are 

V.  Wiggins,  14  Peters,  334.  directed  principally  to  the  error  which 

8  Whart.     Crim.    Law    (7th    ed.),  pervades  the  whole  charge,  consisting 

§  707  a.  in  the  instruction  reiterated  in  differ- 

*  In  Chaffee  v.  U.  S.  18  Wall.  516,  ent  forms,  that,  after  the  government 
which  was  an  action  of  debt  for  a  had  made  out  a  prima  facie  case 
penalty,  we  find  the  question  of  burden  against  the  defendants,  if  the  jury  be- 
ef proof,  in  cases  of  this  class,  thus  lieved  the  defendants  had  'it  in  their 
learnedly  discussed  :  —  power  to  explain  the  matters  appear- 

332 


CHAP.  VII.] 


BURDEN   OF   PROOF. 


[§ 


ing  against  them,  and  did  not  do  so, 
all  doubt  arising  upon  such  pri/rid  facie 
case  must  be  resolved  against  them. 
As  we  have  stated,  the  defendants 
had  paid  taxes  on  over  six  thousand 
barrels  of  whiskey,  manufactured  by 
them  between  the  dates  mentioned  in 
the  declaration.  Nearly  this  number 
was  traced  to  consignees.  By  the  ca- 
nal certificates  and  railroad  receipts 
the  government  had  shown  in  that 
case  a  transportation  from  Tippeca- 
noe of  over  two  thousand  barrels 
more.  It  was  admitted  that  no  charge 
was  to  be  made  to  the  defendants  for 
any  amount  they  had  on  hand  in  Oc- 
tober, 1865,  although  the  declaration 
charges  the  possession  with  the  unlaw- 
ful purpose  to  have  been  between 
February  1,  1865,  and  September  1, 
1866.  The  defendants  endeavored  to 
show  that  they  had  on  hand  at  that 
time  between  two  and  three  thousand 
barrels,  and  for  that  purpose  called  in 
a  large  number  of"  witnesses,  neigh- 
bors, and  others,  who  had  visited  the 
distillery  during  that  period.  The  es- 
timates of  the  amount  by  these  wit- 
nesses differed  materially,  being  made 
from  recollection.  The  defendants 
were  present  at  the  trial,  but  were  not 
called  as  witnesses.  It  was  proved 
that  they  kept  books,  consisting  of 
day-books,  journals,  and  ledgers. 

'*  Now  the  court  instructed  the  jury 
that  it  was  a  rule,  without  exception, 
that  where  a  party  has  proof  in  his 
power  which,  if  produced,  would  ren- 
der material  facts  certain,  the  law 
presumes,  against  him  if  he  omits  to 
produce  it,  and  authorizes  a  jury  to 
resolve  all  doubts  adversely  to  his  de- 
fence ;  that,  although  the  case  must 
be  made  out  against  the  defendants 
beyond  all  reasonable  doubt,  in  this 
case  as  well  as  in  criminal  cases,  yet 
the  course  of  the  defendants  may  have 
supplied  in  the  presumptions  of  law  all 
which  this  stringent  rule  demanded. 


'  In  determining,  therefore,  in  the  out- 
set,' said  the  court  to  the  jury,  '  wheth- 
er a  case  is  established  by  the  govern- 
ment, you  will  dismiss  from  your  minds 
the  perplexing  question  whether  it  is 
so  made  out  beyond  all  doubt.  It 
need  not,  in  the  exigencies  of  this 
case,  be  so  proved  in  order  to  throw 
the  burden  of  explanation  upon  the 
defendant,  if,  from  the  facts,  you  be- 
lieve he  has  within  his  reach  that 
power.  In  the  end,  all  reasonable 
doubt  must  be  removed,  but  here,  at 
this  stage,  you  need  say  only,  is  the 
case  so  far  established  as  to  call  tor 
explanation.'  ....  'If,  then,  you 
conclude  that,  unexplained  and  un- 
controverted  by  any  testimony,  the 
opening  proof  would  enable  you  to 
find  against  the  defendants,  for  the 
claim  of  the  government,  or  any  ma- 
terial part  of  it,  you  will  take  up  their 
testimony  in  view  of  the  principle  ' 
stated,  that  of  presuming  against  a 
party  who  fails  to  produce  proofs  in 
his  possession.  And  again,  the  court 
instructed  the  jury  that  the  law  pre- 
sumed that  the  defendants  kept  the 
accounts  usual  and  necessary  for  the 
correct  understanding  of  their  large 
business,  and  an  accurate  accounting 
between  the  partners,  and  that  the 
books  were  in  existence  and  accessi- 
ble to  the  defendants,  unless  the  con- 
trary were  shown,  and  then  said  to 
the  jury,  '  If  you  believe  the  books 
were  kept  which  contained  the  facts 
necessary  to  show  the  real  amount  of 
whiskey  in  the  hands  of  the  defend- 
ants in  October,  1865,  and  the  amount 
which  they  had  sold  dining  the  next 
ten  months,  or  that  the  defendants, 
or  either  of  them,  could,  by  tlieir  own 
oath,  resolve  all  doul)ts  on  this  point; 
if  you  believe  this,  then  the  circum- 
stances of  this  case  stk-m  to  come  fully 
within  this  most  necessary  and  benefi- 
cent rule.' 

"  The  purport  of  all  this  was  to  tell 

333 


§  371.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


the  jury  that,  although  the  defendants 
must  be  proved  guilty  beyond  a  rea- 
sonable doubt,  yet  if  the  government 
had  made  out  a  prima  facie  case  against 
them,  not  one  free  from  all  doubt,  but 
one  which  disclosed  circumstances  re- 
quiring explanation,  and  the  defend- 
ants did  not  explain,  the  perplexing 
question  of  their  guilt  need  not  dis- 
turb the  minds  of  the  jurors;  their  si- 
lence su^iplied  in  the  presumptions  of 
the  law  that  full  proof  which  should 
dispel  all  reasonable  doubt.  In  other 
words,  the  court  instructed  the  jury, 
in  substance,  that  the  government 
need  only  prove  that  the  defendants 
were  presumptively  guilty,  and  the 
duty  thereupon  devolved  upon  them 
to  establish  their  innocence;  and  if 
they  did  not,  they  were  guilty  beyond 
a  reasonable  doubt. 

"  We  do  not  think  it  at  all  neces- 
sary to  go  into  any  argument  to  show 
the  error  of  this  instruction.     The  er- 

334 


ror  is  palpable  on  its  statement.  All 
the  authorities  condemn  it.  Doty  v. 
State,  7  Blackford,  427  ;  State  v. 
Flye,  26  Me.  312;  Commonwealth  v. 
McKie,  1  Gray,  61.  The  case  of 
Clifton  V.  United  States,  in  4  Howard, 
cited  by  the  court  below,  was  decided 
upon  a  statute  which  cast  the  burden 
of  proof  upon  the  claimant  in  seizure 
cases,  after  probable  cause  was  shown 
for  the  prosecution,  and,  therefore,  has 
no  application.  1  Sts.  at  Large,  678; 
Locke  V.  W.  G.  7  Cranch,  339  The 
instructions  set  at  nought  established 
principles,  and  justifies  the  criticism 
of  counsel,  that  it  substantially  with- 
drew from  the  defendants  their  con- 
stitutional right  of  trial  by  jury,  and 
converted  what  at  law  was  intended 
for  their  protection,  —  the  right  to  re- 
fuse to  testify,  —  into  the  machinery 
for  their  sure  destruction."  Field,  J., 
Chaffee  &  Co.  v.  United  States,  18 
Wall.  541-6. 


CHAPTER  VIII. 


WITNESSES. 


I.  Procuring  Attendance. 

Duty  of  all  persons  cognizant  of  liti- 
gated facts  to  testify,  §  376. 

Subpoena  the  usual  mode  of  enforc- 
ing attendance,  §  377. 

Witness  may  decline  answering  un- 
less subpcEiiaed,  §  378. 

Subpoena  must  be  personally  served, 
§379. 

Fees  allowable  to  witness,  §  380. 

Expenses  must  be  prepaid,  §  381. 

Witness  refusing  to  attend  is  in  con- 
tempt, §  382. 

Attachment  granted  on  rule,  §  383. 

Habeas  carpus  may  issue  to  bring  in 
imprisoned  witness,  §  384. 

Witness  may  be  required  to  find  bail 
for  appearance,  §  385. 
II.  Oath  and  its  Incidents. 

Oath  is  an  appeal  to  a  higher  sanc- 
tion, §  38G. 

Witness  is  to  be  sworn  by  the  form  he 
deems  most  obligatory,  §  387. 

AfKrmation  may  be  substituted  for 
oath,  §  388. 

III.  PmVILEGE    FROM    ArREST. 

Witness  not  privileged  as  to  criminal 
arrest,  but  otherwise  as  to  civil, 
§  389. 

May  waive  his  privilege,  §  390. 

IV.  Who  are  Comtetent  Witnesses. 

Com()etency  is  for  court,  §  391. 

Competency  is  presumed,  §  392. 

Ordinarily  competency  should  be  ex- 
cepted to  before  oath,  §  393. 

Distinction  between  primary  and 
secondary  does  not  apply  to  wit- 
nesses, §  394. 

Atheism  at  common  law  disqualifies, 
§  395. 

Evidence  may  be  taken  as  to  relig- 
ious belief,  §  396. 

Infamy  at  common  law  disqualifies. 


Removal  of  disability  by  statute, 
§  397. 

Admissibility  of  infants  depends  on 
intelligence,  §  398. 

Deficiency  of  percipient  powers  if 
total  excludes,  §  401. 

The  same  tests  are  applicable  to  in- 
sanity, §  402. 

Witness  may  be  examined  by  judge 
as  to  capacity,  §  403. 

Credibility  depends  not  only  on  ve- 
racity but  on  competency  to  ob- 
ser\'e,  §  404. 

Incapacity  to  state  may  affect  compe- 
tency, §  405. 

Deaf  and  dumb  witnesses  not  incom- 
petent, §  406. 

Interpretation  admissible,  §  407. 

Bias  to  be  taken  into  account  in  esti- 
mating credibility,  §  408. 

And  so  of  want  of  opportunities  of 
observation,  §  409. 

And  so  uncertainty  of  memory, 
§410. 

Want  of  circumstantiality  a  ground 
for  discredit,  §  411. 

Falsum  in  uiw,  falsum  in  omnibus,  not 
universally  applicable,  §  412. 

Literal  coincidence  in  oral  statements 
suspicious,  §  413. 

One  witness  generally  enough  to 
prove  a  case,  §  414. 

Afiirmative  testimony  stronger  than 
negative,  §  415. 

When  credit  is  e(iual,  preponderance 
to  be  given  to  numbers,  §  410. 

Credibility  of  witnesses  is  for  jurj*, 
§417. 

Intoxicated  witnesses  may  be  ex- 
cluded, §  418. 

Intcre.-^t  no  longer  di.'-qunlifics,  §  419. 

Counsel  in  case  may  be  witnesses, 
§  420. 

335 


THE  LAW   OF  EVIDENCE. 


[book  II. 


V.  Distinctive  Rules  as  to  Husband 

AND  Wife. 

Husband  and  wife  incompetent  in 
each  otlier's  suits  at  common  law, 
§  421. 

But  may  be  wisnesses  to  prove  mar- 
riage collaterally,  §  424. 

Cannot  be  compelled  to  criminate 
*  each  other,  §  425. 

Distinctive  rules  as  to  bigamy,  §  426. 

Cannot  testify  as  to  confidential  re- 
lations, §  427. 

Consent  will  waive  privilege,  §  428. 

Effect  of  death  and  divorce  on  ad- 
missibility, §  429. 

General  statutes  do  not  remove  disa- 
bility, §  430. 

Otherwise  as  to  special  enabling  stat- 
utes, §  431. 

Husband  and  wife  may  be  admitted 
to  contradict  each  other,  §  432. 

In  divorce  cases,  testimony  to  be 
carefully  weighed,  §  433. 

VI.  Distinctive  Rules  as  to  Experts. 

Expert  testifies  as  a  specialist,  §  434. 

May  be  examined  as  to  laws  other 
than  the  lex  fori,  §  435. 

But  cannot  be  examined  as  to  matters 
non-professional,  or  of  common 
knowledge,  §  436. 

Whether  conclusion  belongs  to  spe- 
cialty is  for  court,  §  437. 

Expert  may  be  examined  as  to  scien- 
tific authorities,  §  438. 

Expert  must  be  skilled  in  his  spe- 
cialty, §  439. 

Experts  may  give  their  opinions  as 
to  conditions  connected  with  their 
specialties,  §  440. 

Physicians  and  surgeons  are  so  ad- 
missible, §  441. 

So  of  lawyers,  §  442. 

So  of  scientists,  §  443. 

So  of  practitioners  in  a  business  spe- 
cialty, §  444. 

So  of  artists,  §  445. 

So  of  persons  familiar  with  a  market, 
§446. 

Opinion  as  to  value  admissible,  §  447. 

Generic  value  admissible  in  order  to 
prove  specific,  §  448. 

Proof  of  market  value  may  be  by 
hearsay,  §  449. 

And  so  as  to  damage  sustained  by 
property,  §  450. 

On  questions  of  sanity  not  only  ex- 
perts but  friends  and  attendants 
may  be  examined,  §  451. 

336 


Expert  may  be  examined  as  to  hypo- 
thetical case,  §  452. 
May  explain  his  opinion,  §  453. 
His  testimony  to  be  jealously  scruti- 
nized, §  454. 
Especially  when  ex  parte,  §  455. 
He  may  be  specially  feed,  §  456. 
VII.  Distinctive  Rules  as  to  Parties. 
B}'  old  Roman  law  conscience  of  par- 
ties could  be  probed,  §  457. 
By  later  practice  examination  of  par- 
ties was  permitted,  §  460. 
Importance  of  such  testimony,  §  461. 
Oaths  by  parties  have  obligatory  as 

well  as  evidential  force,  §  462. 
Statutes  removing  disability  not  ex 

post  facto,  §  463. 
Statutes    to    be    liberally   construed, 
§464. 
Cover  depositions,  §  465. 
Exception  when  other  contracting 

party  is  deceased,  §  466. 
Based  on  equity  practice,  §  467. 
Incompetency   in   such   case    re- 
strained to  communications  with 
deceased,  §  468. 
Does  not  extend  to  contracts  not 
exclusively      with      deceased, 
§469. 
Does    not    exclude    intervening 

interests,  §  470. 
Does  not  exclude  executor  from 
testifying  in  his  own  behalf, 
§471. 
Surviving  partner  against  estate, 

§472. 
Includes   real  but   not  technical 

parties,  §  473. 
Does    not   relate  to  transactions 

after  deceased's  death,  §  474. 
Does  not  extend  to  torts,  §  475. 
Does  not  make  incompetent,  wit- 
nesses   previously    competent, 
§476. 
Does  not  exclude  testimony  of 
parties     taken    before    death, 
§477. 
Statutes  do  not  touch  common  law 
privilege  of  husband  and  wife,  §  478. 
Or  of  attorne}',  §  479. 
Party  is  subject  to  the  ordinary  limi- 
tation of  witnesses,  §  480. 
May  be  cross-examined  to  the  same 

extent,  §  481. 
May  be  examined  as  to  his  motives, 

§'482. 
Cannot  avoid   relevant  questions  on 
the  ground  of  self -crimination,  §  483. 


CHAP.  VIII.] 


WITNESSES. 


May    be    contradicted    on    material 

points,  §  484. 
May  be  reexamined,  §  485. 
Presumption    against    party  for  not 

testifying,  §  486. 
Two  witnesses  not  necessary  to  over- 
come party's  testimony,  §  487. 
Party  is  bound  by  his  own  admissions 

on  the  stand,  §  488. 
Under  statutes  one  party  may  call  the 

other  as  witness,  §  489. 
Where  party  is  examined  on  interrog- 
atories equity  practice  is  followed, 
§  490. 
VIII.  Examination  of  Witnesses. 

Judge    may    order    separation    of 

witnesses,  §  491. 
Voir  dire  a  preliminary  examina- 
tion, §  492. 
Interpreter  to  be  sworn,  §  49-3. 
Witnesses  refusing  to  answer  pun- 
ishable by  attachment,  §  494. 
Witness  is  no  judge  of  the  materi- 
ality of  his  testimony,  §  495. 
Court  may  examine  witness,  §  496. 
Witness  is  protected  as  to  answers, 

§497. 
On  examination  cannot  be  prompt- 
ed, §  498. 
Leading  questions  usually  prohib- 
ited, §  499. 
Exception  as  to  unwilling  witness, 
§500. 
And    as   to   witness    of    weak 

memorj',  §  501. 
So  when  such  question  is  nat- 
ural, §  502. 
So  when  witness   is   called  to 

contradict,  §  503. 
So  when  certain  postulates  are 
assumed,  §  504. 
Court  has  discretion  as  to  cumula- 
tion of  witnesses,  and  of  exami- 
nation, §  505. 
So  as  to  mode  and  tone  of  exami- 
nation, §  506. 
Witness  cannot  be  asked  as  to  con- 
clusion of  law,  §  507.  ^ 
Conclusion  of  witness  as  to  motives 

inadmissible,  §  508. 
Opinion  of  witness  cannot  ordina- 
rily be  asked,  §  509. 
Witness    may   give    substance    of 

conversation  or  writing,  §  514. 
Vague  impressions  of  facts  are  in- 
admissible, §  515. 
IX.  Refuesiiino  Memoky  of  Witness. 
VOL.  I.  22 


Witness  may  refresh  his  memory  by 
memoranda,  §  516. 

Such  memoranda  are  inadmissible 
if  unnecessary,  §  517. 

Not  fatal  that  witness  has  no  recol- 
lection independent  of  notes,  §  518. 

Not  necessary  that  notes  should  be 
independently  admissible,  §  519. 

Memoranda  admissible  if  primary 
and  relevant,  §  520. 

Notes  must  be  primary,  §  521. 

Not  necessary  that  writing  should 
be  by  witness,  §  522. 

Inadmissible  if  subsequently  con- 
cocted, §  523. 

Depositions  may  be  used  to  refresh 
the  memory,  §  524. 

Opposing  part}'  is  not  entitled  to 
inspect  notes  which  fail  to  refresh 
memory,  §  525. 

Opposing  party  may  put  the  whole 
notes  in  evidence  if  used,  §  526. 
X.  Cross-e.xamination. 

On  cross-examination  leading  ques- 
tions may  be  put,  §  527. 

Closeness  of  cross-examination  at 
the  discretion  of  the  court,  §  528. 

Witness  can  usually  be  cross-e.xam- 
ined  only  on  the  subject  of  his 
examination  in  chief,  §  529. 

His  memory  may  be  probed  by  per- 
tinent written  instruments,  §  531. 

But  collateral  points  cannot  be  in- 
troduced to  test  memory,  §  532. 

Witness  cannot  be  compelled  to 
criminate  himself,  §  533. 

Nor  to  expose  himself  to   fine 
or  forfeiture,  §  534. 

Privilege  in  this  respect  can  only  be 
claimed  by  witness,  §  535. 

Danger  of  prosecution  must  be  real, 
§536. 

Exposure  to  civil  liability  or  to 
police  prosecution,  no  excuse,  § 
537. 

Court  determines  as  to  danger,  §  538. 

Waiver  of  part,  waives  all,  §  539. 

Pardon  and  indemnity  do  away 
with  protection,  §  540. 

For  the  purpose  of  discrediting  wit- 
ness, answers  will  not  In;  com- 
pelled to  questions  imputing  di.4- 
grace,  §  541. 

Otherwise  when  such  questions  arc 
material,  §  542. 

Questions  may  be  asked  as  to  relig- 
ious belief,  §  543. 

337 


THE  LAW   OF   EVIDENCE. 


[book  U. 


And  so  as  to  motive,  veracity,  and 
the  res  gestae,  §  544. 

Witness  may  be  cross-examined  as 
to  bias,  §  545. 

Inference  against  witness  may  be 
drawn  from  refusal  to  answer, 
§  546. 

His  answers  as  to  previous  conduct 
generally  conclusive,  §  547. 
XI.  Impeaching  Witness. 

Party  cannot  discredit  his  own  wit- 
ness, §  549. 

(As  to  subscribing  witness,  see 
§500.) 

A  party's  witnesses  are  those  whom 
he  voluntarily  examines  in  chief, 
§  550. 

Witness  may  be  contradicted  by 
proving  that  he  formerly  stated 
differently,  §  551. 

But  usually  must  be  first  asked  as 
to  statements,  §  555. 

Witness  cannot  be  contradicted  on 
matters  collateral,  §  559. 

By  old  practice  conflicting  witnesses 
could  be  confronted,  §  560. 

Witness's  answer  as  to  motives  may 
be  contradicted,  §  561. 

His  character  for  truth  and  verac- 
ity may  be  attacked,  §  562. 

Questions  to  be  coniined  to  this  is- 
sue, §  563. 

Bias  of  witness  may  be  shown,  §  566. 

Infamous  conviction  may  be  proved 
as  affecting  credibility,  §  667. 
XII.  Attacking   and    sustaining    Im- 
peaching Witness. 

Impeaching  witness  may  be  at- 
tacked and  sustained,  §  568. 

XIII.  Sustaining  Impeached  Witness. 

Impeached  witness  may  be  sus- 
tained, §  569. 

But  not  ordinarily  by  proof  of  for- 
mer consistent  statement,  §  570. 

May  be  corroborated  at  discretion 
of  court,  §  571. 

XIV.  Reexasiination. 

Party  may  reexamine  his  witnesses, 
§  572. 

Witness  may  be  recalled  for  reex- 
amination, §  574. 

And  for  re-cross-examination,  §  575. 
XV.  Pkivileged  Communications. 

Lawyer  not  permitted  to  disclose 
communications  of  client,  §  576. 

Not  necessary  that  relationship 
should  be  formally  instituted,  §  578. 

338 


Nor  that  communications  should  be 

made  during  litigation,  §  579. 
Nor  is  privilege  lost  by  termination 
of  relationship,  §  580. 

Privilege  includes  scrivener  and 
conveyancer,  as  well  as  general 
counsel,  §  581. 

So  as  to  lawyer's  representatives, 
§582. 

Client  cannot  be  compelled  to  dis- 
close communications  made  by 
him  to  his  lawyer,  §  583. 

Privilege  must  be  claimed  in  order 
to  be  applied  and  may  be  waived, 
§584. 

Privilege  applies  to  client's  docu- 
ments in  lawyer's  hands,  §  585. 

Privilege  lost  as  to  instruments 
parted  with  by  lawyer,  §  586. 

Communications,  to  be  privileged, 
must  be  made  to  party's  exclu- 
sive adviser,  §  587. 

Lawyer  not  privileged  as  to  infor- 
mation received  by  him  extra- 
professionally,  §  588. 

Information  received  out  of  scope 
of  professional  duty  not  privi- 
leged, §  589. 

Privilege  does  not  extend  to  com- 
munications in  view  of  breaking 
the  law,  §  590. 

Nor  to  testamentary  communica- 
tions, §  591. 

Lawyer  making  himself  attesting 
witness  loses  privilege,  §  592. 

Business  agents  not  lawyers  are  not 
privileged,  §  593. 

Communications  between  party  and 
witnesses  privileged,  §  594. 

Telegraphic  communications  not 
privileged,  §  595. 

Priests  not  privileged  at  common 
law  as  to  confessional,  §  596. 

Arbitrators  cannot  be  compelled 
to  disclose  the  ground  of  their 
judgments,  §  599. 

Nor  can  judges,  §  600. 
Nor  jurors  as  to  their  delibera- 
tions, §  601. 

Juror  if  knowing  facts  must  testify 
as  witness,  §  602. 

Prosecuting  attornej'  privileged  as 
to  confidential  matter,  §  603. 

State  secrets  are  privilege.!,  §  604. 

And  consultations  of  legislature  and 
executive,  §  605. 


CHAP.  VIII.]  WITNESSES.  [§  377. 


Medical  attendants  not  privileged, 

§606. 
No  privilege  to  ties  of    blood  or 

friendship,  §  607. 
Parent  cannot  be  examined  as  to 


access  in  cases  involving  legiti- 
macy, §  608. 
XVI.  Depositions. 

Depositions  governed  by  local  laws, 
§609. 


I.    PROCURING  ATTENDANCE. 

§  376.  As  a  general  rule,  it  is  the  duty  of  all  persons  cognizant 
of  facts  material  to  a  litigated-  issue  to  testify  as  to  the  Duty  of 
same.  In  the  classical  Roman  law,  in  civil  cases,  this  co'^^i*i"ant 
duty  was  not  to  the  court,  but  to  parties  ;  and  the  par-  f  litigated 
ties  alone,  as  a  rule,  could  proceed  against  a  witness  re-  tify. 
fusing  to  appear,  or  refusing  to  answer.  In  public  penal  prose- 
cutions Q'lidicia  puhlica),  and  in  cognate  civil  suits  involving 
public  interests,  a  compulsory  evocatio  from  the  magistrate  could 
be  sued  out.^  But  the  earlier  jurists  treated  the  duty  to  testify 
in  private  suits  simply  as  a  private  obligation  ;  ^  while  in  Jus- 
tinian's time  it  was  regarded  as  absolute  and  unconditioned."^  To 
the  canon  law  we  owe  in  this  respect,  in  some  jurisdictions  the 
substance,  in  others,  the  form  as  well  as  the  substance,  of  our  pres- 
ent practice.  In  civil  suits,  by  the  canon  law,  a  monition  may 
be  sued  out  to  require  the  attendance  of  a  witness  ;  in  penal 
cases,  for  the  monere  a  cogere  is  substituted.^  To  compel  obe- 
dience to  a  monition,  when  neglected,  are  issued  ecclesiastical 
censures,  suspension,  or  excommunication ;  and  in  foro  laico, 
mulctae,  pignoris  capio,  and  similar  penalties.^ 

§  377.  A  subpoena  ad  testificandum  is  a  writ  issued  for  the 

purpose  of  compelling  the  attendance  of  a  witness  at  a   Subpoena 

judicial  proceeding,  whether  at  common  law  or  equity.^    nJodTor 

When  the  witness  is  required  to  produce  papers,  these    g"/",[[j'a",^g 

must  ordinarily  be  specified  in  the  subpoena,  which  is    «'/  ^^■''"•-'»»- 
•^  ^  ^  1' or  papers. 

then  styled  a  subpoena  duces  tecum.''     The  clerk  or  cus- 

1  See  L.   26,  xxviii.  1 ;  L.  iii.  §  9  ;     may  be  issued  by  a  legislature.    Briggs 
xliii.  5;  Quinct.  V.   c.   7;    Pucbta,  p.      v.  Mackellar,  2  Abb.  (Pr.)  ;S0. 
200,  note  r;  Endemann,  194.  «  Hill  v.   Dolt,  7  Ue  Ge.x.  M.   &  (i. 

^  See  authorities  last  cited.  397;  Morcant.  Co.  in  re,  L.  R.  K!  E«}. 

8  L.    16,  Cod.  iv.  20;    L.    19,  Cod.      179;   Contract  Co.  in  re,  I>.  R.  C.  Ch. 
iv.  20;  Nov.  90,  c.  8.  Ap.  146;  Mourning  v.  Davis,  2  Hayw. 

*  See  Durant,  I.  4,  de  test,  §   13,     219. 
No.  3.  T  Amey  v.  Long.  9  East,  4  73;  Cent. 

6  Durant,  I.  c.   §  13.     A    subpoena     Nat.  Hk.   v.    Arlluir,  2  Swreny,  194  ; 

Erie  R.  R.  v.  Htath,  8  Blatch.  413; 
339 


§  378.] 


THE   LAW   OF   EVIDENCE. 


[book  n. 


a  subpoena    todian  of  public  records  cannot,  indeed,  be  in  this  way 

duces  te-  compelled  to  produce  such  records,  they  not  beins;  within 
cum  issues.  ■"■  -^  ,      .  .  . 

his  power.^     But  it  is  enough,  in  other  cases,  if  the 

papers  are  in  the  possession  of  the  witness,  though  the  right  to 
them  belong  to  other  persons.  If  he  possess  them,  he  may  be 
compelled  by  subpoena  to  bring  them  into  court.^  Whether  he 
will  be  compelled  to  produce  such  papers,  is  a  matter  to  be  sub- 
sequently determined  by  the  court.  Bring  them  into  court  he 
must,  if  they  be  in  his  possession,  and  they  are  demanded  by  sub- 
poena.'^ But  the  papers  must  be  duly  designated ;  a  notice  to  pro- 
duce all  papers  relative  to  the  issue  will  not  be  enough.*  And 
they  must  be  made  to  appear  to  be  under  the  witness's  control.^ 
A  witness  neglecting  to  obey  the  writ  is  liable  not  merely  to  at- 
tachment but  to  a  suit  for  damages.^  A  party  is  open  to  a  sub- 
poena,'^ and  may  be  required  to  produce  his  books  and  papers, 
without  a  previous  rule  or  order  of  court,  by  a  subpoena  duces 
tecum.^     To  corporations,  however,  this  does  not  apply .^ 

A  witness  in  a  civil  case  (the  practice  being  otherwise 
in  criminal)  is  entitled  to  have  due  notice  in  order  to 
refresh  his  memory  and  arrange  his  business  so  as  to 
enable  him  to  testify ;  and  hence,  if  called  upon  with- 
out notice  upon  his  happening  to  be  in  the  court,  he  is 


§378. 


Witness 
may  de- 
cline an- 
swering 
unless  sub 


Murray  v.  Elston,  23  N.  J.  Eq.  212 
O'Toole's  Est.  1  Tuck.  (N.  Y.)  3D 
Townshend  v.  Townshend,  7  Gill,  10 
Martin  v.  Williams,  18  Ala.  190. 

1  Austin  V.  Evans,  2  M.  &  Gr.  430; 
Thornhill  v.  Thornliill,  2  Jac.  &  W. 
347. 

2  Amey  v.  Long,  1  Camp.  14. 

8  Ibid.;  Bull  V.  Loveland,  10  Pick. 
9;  Burnham  v.  Morrissey,  14  Gray, 
226;  Chaplain  v.  Briscoe,  13  Miss. 
198.  See,  further,  as  to  practice,  su- 
pra, §  150. 

*  Atty.  Gen.  v.  "Wilson,  9  Sim.  526; 
Lee  V.  Angus,  L.  R.  1  Eq.  59.  Where 
the  writ  is  directed  to  an  officer  of 
a  telegraph  company,  to  produce  cer- 
tain messages,  it  need  only  describe 
the  messages  with  such  practicable 
certainty  that  the  witness  may  know 

340 


what  is  required  of  him.  United  States 
V.  Babcock,  3  Dillon,  566. 

^  Bank  of  Utica  v.  Hillard,  5  Cow. 
153. 

6  Robinson  v.  Trull,  4  Cush.  249 ; 
Lane  v.  Cole,  12  Barb.  680;  Has- 
brouck  V.  Baker,  10  Johns.  R.  248; 
Hiird  r.  Swan,  4  Denio,  75;  McCall 
V.  Butterworth,  8  Iowa,  329  ;  Prentiss 
V.  Webster,  2  Douglass  (Mich.),  5; 
Connett  v.  Hamilton,  16  Mo.  442. 

^  Anderson  v.  Johnson,  1  Sandf. 
713;  though  see  Gambrill  r.  Parker, 
31  Md.  1;  Bleecker  v.  Carroll,  2  Abb. 
(Pr.)  82. 

*  Trotter  v.  Latson,  7  How.  Pr.  261 ; 
People  V.  Dyckman,  24  How.  Pr.  222; 
Duke  V.  Brown,  18  Ind.  Ill,  contra. 
See  infra,  §  439. 

9  Central  Bk.  t'.  White,  37  N.  Y. 
Sup.  Ct.  297. 


CHAP.  VIII.]  WITNESSES  :   SUBPCENA.  [§  380. 

ordinarily  entitled  to  decline  on  the  ground  that  he  was  not 
served  with  a  subpoena.^  How  long  a  notice  the  subpoena  must 
give,  depends  upon  the  circumstances  of  the  particular  case.  If 
the  issue  allow  time  enough,  and  if  the  existence  and  residence 
of  the  witness  be  known  to  the  party  desiring  his  attendance, 
the  courts  will  not  issue  an  attachment  against  him  for  non- 
attendance  on  a  subpoena  served  on  him  the  day  of  the  trial.^ 
If,  however,  he  be  on  regular  attendance,  though  without  having 
been  served  with  a  subpoena,  and  no  laches  are  imputable  to  the 
party  summoning  him,  then  he  cannot  avail  himself  of  the  short- 
ness of  the  summons  as  an  excuse  for  non-testifying.^  Nor 
where  the  name  or  residence  of  an  important  witness  only  be- 
comes known  to  the  party  on  trial,  can  it  be  supposed  that  a 
court  would  do  otherwise  than  sustain  process  for  compelling 
such  witness  immediately  to  testify.'* 

§  379.  By  the  English  practice  it  is  sufficient  to  leave  a  copy 
of  the  substance  of  a  subpoena,  which  is  called  a  sub-  Subpoena 
poena  ticket,  with  the  witness.  This,  however,  must  be  ^"ved  per- 
done  personally  ;  ^  and  the  original  writ  must  be  shown  sonaiiy. 
to  the  witness  at  the  time  the  copy  or  the  ticket  is  left  with  him.® 
Any  substantial  variance  between  the  ticket  and  the  subpoena 
precludes  the  summoning  party  from  obtaining  an  attachment.'' 

§  380.  By  the  stat.  5  Eliz.  c.  9,  a  witness  is  entitled  to  his 
"  reasonable   costs   and  charges."     What  charges  are   ^ 

'^  _  °  recs  allow- 

reasonable   is   arbitrarily   settled   in   many   states   by   able  to 
statute.     In  England,  with  greater  consideration,  the 
common   law  courts   have   adopted    a  graduated  scale,  suitable 
to   the   sacrifices   of   time  made   by   witnesses   in   obeying   the 
summons.^      But   where  foreign  witnesses,  or  witnesses  in  any 
way  out  of  the  jurisdiction  of  the  court,  are  brought  in,  special 

1  Bowles  V.  Johnson,  1  W.  Bl.  36.  «  Garden  v.   Crcswell,  2  M.  &  W. 

3  Barber  U.Wood,  2  M.  &  Rob.  172;  319;  Wadsworth   r.  Marshall,  1   C.  & 

Hammond  v.  Stewart,  1  Str.  510,  and  M.  87;  Marshall  v.  R.   R.  II    C.    B. 

cases  cited  infra  §  381.  398. 

8  Doe  V.  Andrews,  2   Cowp.  845  ;  '  Chapman  i'.  Davis,  4  Scott  N.  R. 

Jackson  v.  Seagar,  2  Dow.  &  L.  13.  319;  .V.  C.  3  ^l.  &  (Jr.   G09  ;  Doe  v. 

*  See  Wisden  v.  Wisden,  6  Beav.  Thomson,  9  Dowl.  948. 

549.  *  See  Taylor  on  Evidence,  §  1126. 

^  Pyne,  in  re,  1   Dow.  &   L.    703; 
Doe  V.  Andrews,  2  Cowp.  846. 

841 


§  382.] 


THE   LAW   OF  EVIDENCE. 


[book  n. 


§381. 


Expenses 
must  be 
prepaid. 


allowances  to  them  will  be  sustained  by  the  court  as  part  of  the 
taxable  costs  ;  ^  and  so  where  persons  have  been  detained  in  the 
country,  at  great  inconvenience  to  themselves,  but  great  benefit 
to  public  justice,  in  order  to  give  evidence  on  trial.^  Extraor- 
dinary causes,  also,  may  justify  extraordinary  costs.^  Even  a 
party's  fees  as  a  witness  may,  under  peculiar  circumstances,  be 
allowed. 

In  civil  cases,  an  attachment  will  not  issue  to  compel 
attendance  unless  the  reasonable  expenses  of  the  wit- 
ness, as  such  expenses  are  legally  defined,  have  been 
paid,  or  at  least  tendered  to  him  in  advance  of  trial.* 
The  same  practice  exists  in  equity  suits.^     Directly  or  indirectly, 
however,  a  witness  may  waive  his  claim  to  such  remuneration.^ 
§  382.  Wilful  non-attendance  by  a  witness,  when  duly  sum- 
„  moned,  is   a   contempt   of  court,    being   in   itself   an 

Witnesses  ^  o 

refusing  to  offence  against  public  justice.'^  The  summons,  how- 
in  con-  ever,  to  constitute  such  contempt,  must  be  shown  to 
tempt.  have  been  regularly  made,  with  due  time  to  prepare  for 
attendance.^  In  civil  cases,  proof  must  be  made  of  the  payment 
to  the  witness  of  his  taxable  fees,  or  at  least  of  the  tender  of 
such  fees,^  unless  such  tender  be  waived.^*^  Due  service  also 
requires,  as  we  have  seen,  that  the  writ  should  be  exhibited  to 


1  Tremain  v.  Barrett,  6  Taunt.  88 ; 
Lonergan  v.  Ass.  Co.  7  Bing.  725. 

2  Stewart  v.  Steele,  4  M.  &  Gr. 
669. 

8  Beaufort  v.  Asliburnham,  13  C.  B. 
N.  S.  598 ;  Potter  v.  Rankin,  L.  R.  5 
C.  P.  518;  Berry  v.  Pratt,  1  B.  &  C. 
276.  See,  as  limiting  this  to  infra- 
territorial  mileage,  White  v.  Judd,  1 
Mete.  (Mass.)  293  ;  Rowland  v.  Lenox, 
4  Johns.  311. 

*  Brocas  v.  Lloyd,  23  Beav.  129; 
Newton  v.  Harland,  1  M.  &  Gr.  956; 
Betteley  v.  McLeod,  3  Bing.  N.  C. 
415;  Thomas,  in  re,  1  Dillon,  420. 

6  Gresl.  Eq.  Ev.  59;  Cast  w.  Pey- 
ser, 3  Sm.  &  G.  369. 

6  Newton  v.  Harland,  1  M.  &  Gr. 
956;  Betteley  v.  McLeod,  3  Bing.  N. 
C.  405. 

342 


''  2  Wait's  Pr.  722 ;  Borrow  v.  Hum- 
phreys, 8  B.  &  A.  600 ;  Burr's  Trial, 
354;  Judson,  ex  parte,  3  Blatch.  89, 
148;  Roelker,  ex  parte,  1  Sprague, 
276  ;  Cent.  Nat.  Bk.  v.  Arthur,  2 
Sweeny,  194;  Langdon,  ex  parte,  25 
Vt.  680;  Walker,  ex  parte,  25  Ala. 
81.  See  Thompson  v.  R.  R.  22  N.  J. 
Eq.  111. 

8  See  Scholes  v.  Hilton,  10  M.  &  W. 
15;  Garden  v.  Creswell,  2  M.  &  W. 
319;  Hill  V.  Dolt,  7  De  Gex,  M.  &  G. 
397  ;  Fricker's  case,  L.  R.  13  Eq. 
178;  Scammon  v.  Scammon,  33  N.  H. 
52.  See,  however,  Chicago  R.  R.  v. 
Dunning,  18  111.  494. 

9  Brocas  v.  Lloyd,  23  Beav.  129  ; 
Newton  v.  Harland,  1  M.  &  Gr.  956. 

10  Goff  D.Mills,  2  Dow.  &L.  23.  As 
to  extent  of  fees,  see  supra,  §  380. 


CHAP.  Vm.]        WITNESSES :   PROCURING   ATTENDANCE   OF.  [§  384. 

the  witness,  and  either  a  copy,  or  a  ticket  giving  its  substance, 
left  with  him.i  It  has  been  said  that  it  is  essential,  in  order  to 
obtain  an  attachment,  to  prove  that  the  witness  wilfully  refused 
to  attend.2  g^j^  wilfulness  is  to  be  assumed  from  the  very  fact  of 
non-attendance  after  summons  ;  and  ordinarily  it  is  enough  for  a 
party  to  prove  such  summons,  with  payment  or  tender  of  fees, 
in  order  to  obtain  a  rule  to  show  cause  why  an  attachment  should 
not  issue.  If  otherwise,  there  would  be  no  way  of  bringing  neg- 
ligent witnesses  into  court.^  If  the  testimony  of  the  witness, 
however,  is  immaterial,  and  there  be  no  contempt  shown,  the 
attachment  may  be  refused.^ 

§  383.  In  this  country  the  practice  in  many  jurisdictions  is  to 
grant  an  attachment  at  once  upon  proof  of  due  service  Attach- 
of  the  subpoena  as  above  expressed.^  The  witness,  in  ^ran'ted  on 
such  case,  on  appearing  in  court,  and  purging  his  con-  ^j'''^  ^° 
tempt,  and  paying  costs,  is  entitled  to  be  discharged  cause. 
from  custody.  In  England,  the  course  is  for  the  summoning  party 
to  apply  first  for  a  rule  to  show  cause,  which  is  granted  on  ex 
parte  proof  .*^  Yet  where  the  delay  incident  on  such  a  rule  would 
be  pernicious  to  the  case  of  the  summoning  party,  the  rule,  if  not 
dispensed  with,  may  be  shaped  in  such  a  way  as  to  secure  almost 
immediate  attendance.  When  it  appears,  upon  a  rule  to  show 
cause,  that  the  witness  is  too  ill  to  attend,"  or  is  in  any  other 
way  incapacitated,^  or  has  been  led  to  believe  that  his  attend- 
ance was  not  really  required,^  the  rule  will  be  discharged.  But 
in  other  cases  it  will  be  granted  at  the  discretion  of  the  court, 
upon  due  proof  of  service,  and  of  its  disregard. ^° 

§  384.  When  a  witness  is  in  prison,  his  attendance  may  be 

1  Marshall  v.  R.  R.  11  C.  B.  398;  ''  Farrab  v.  Keat,  6  Dowl.  -170; 
Gardens.  Crcswell,  2  M.  &  W.  319;  Jackson  v.  Perkins,  2  Wond.  308; 
Smith  V.  Truscott,  1  I).  &  L.  530.  Cutlor  v.  State,  12  Ind.  214;  Siauirhter 

2  See  Scholes  v.  Hilton,  10  M.  &  v.  Birdwell,  1  Head,  3»1.  See  Pipher 
W.  15;  Netherwood  v.  Wilkinson,  17  v.  Lodge,  16  Ser;;.  &  R.  2M. 

C.  B.  226.  *  State  r.  Benjamin.  7  La.  An.  47. 

8  Jackson  v.  Seager,  2  Dowl.  &  L.         »  R.  v.  Sloman,  7  Duwi.  (lO:?;  State 

13,  °  r.  Nixon,  Wriiiht  (Ohio),  763;  Be.iu- 

*  Dicas  V.  Lawson,  1  Cr.,  M.  &  R.  lieu  v.  Parsons,  2  Minn.  37. 
934;  Scholes  t;.  Hilton,  u<  supra.  ^°  Judson,  ex   i)arte,  3  Blateh.  89; 

6  Sec  Jackson  v.  Mann,  2  Caincs,  State  v.  Trumbull,  1   Southanl,  139; 

92.  Stephens   v.   People,    19    N.    Y.   549; 

«  Taylor's  Evidence,  §  1145.  West  v.  State,  1  Wise.  209. 

843 


§  385.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

secured  by  a  habeas  corpus  ad  testificandum }  To  this  writ  it  is 
Habeas  Ordinarily  a  prerequisite  that  the  party  desiring  the  at- 
iS**"^^  tendance  of  the  witness  should  make  affidavit  before  a 
bring  in  an   -judore  at  chambers  that  the  witness  in  question  is  mate- 

impnsoned    J       o  ^     ^  .      .       , 

witness.  rial  to  the  case,  but  is  in  custody,  whether  on  criminal  or 
civil  process.2  In  England,  at  common  law,  it  has  been  doubted 
whether  the  writ  should  be  granted  to  bring  into  court  a  pris- 
oner of  war.3  The  proper  course,  it  was  thought  by  Lord  Mans- 
field, was  to  make  application  to  the  secretary  of  state  ;  though  if 
the  latter  functionary  should  decline  to  grant  the  desired  relief, 
a  rule  would  be  granted  by  the  court  to  show  cause  why  the 
adverse  party  should  not  admit  the  facts,  or,  as  an  alternative, 
consent  to  examining  the  witness  by  commission.  If  this  con- 
sent was  refused,  it  was  intimated  that  the  court  would  put  off 
the  trial  to  enable  the  applicant  to  proceed  by  bill  of  discovery. 
A  party  to  the  record,  who  is  entitled  to  testify  in  the  case, 
if  he  be  in  prison,  is  entitled  to  use  this  writ  in  order  that  he 
may  himself  be  brought  into  court.^  The  same  writ  has  been 
issued  to  secure  the  presence  in  court  of  a  person  confined  as  a 
lunatic.^  But  where  the  desired  witness  is  out  of  the  jurisdiction 
of  the  court,  the  writ  will  not  be  granted  where  there  is  an  op- 
portunity to  take  the  witness's  deposition.^ 

§  385.  It  may  happen  that  suspicions  exist  that  a  witness 
Witness  niay  disappear,  or  be  spirited  away,  before  trial.  If  so, 
quired^ to^'  ^^^  Criminal  cases,  and,  when  allowed  by  statute,  in  civil 
find  bail       cascs,  he  mavi  on  due  ground  laid,  be  held  to  bail,  to 

for  appear-  '  j '  o  '  ^ 

ance.  appear  at  the  trial,  and  may  be  committed  on  failure 

to  procure  bail.'^  Such  imprisonment  does  not  violate  the  sanc- 
tions of  the  federal  or  state  constitutions.^  By  statutes  in  the 
United  States  and  in  several  of  the  particular  states,  this  right  is 

^  See   R.  V.  Eoddam,  Cowp.  672;         ^  Koecker  v.  Koecker,  7  Philadel. 

State  V.  Kennedy,  20  Iowa,  372.  E..  364. 

2  Chitty,    Forms,    60;    Marsden   v.         ^  U.  S.  v.  Butler,  1   Cranch  C.  C. 

Overbury,  18  C.  B.  34;  Gordon's  case,  422;  Evans  v.  Bees,  12  Ad.  &  El.  55; 

2  Maule  &  S.  580;  Browne  y.  Gisborne,  Ashton's  case,  7  Q.  B.  169;   State  v. 

2  Dowl.  N.  S.  263;  Graham  v.  Glorer,  Zellers,  7  N.  J.  Law  (2  Halst.),  220. 

5  E.  &  B.  591.  See,  however,  Birkley  i'.  Com.  2  J.  J. 

'  Furly  V.  Newnham,  2  Doug.  419.  Marsh.  572,  where  it  is  said  that  the 

*  Cobbett,  ex  parte,  4  Jur.  N.  S.  court  cannot  compel  the  witness   to 

145.  give  surety. 

6  Fennell  v.  Tait,  1  C.,M.  &  R.  584.         8  gtate  v.  Grace,  18  Minn.  398. 

344 


CHAP.  VIII.]  WITNESSES  :    OATH   AND   ITS   INCIDENTS.  [§  386. 

affirmed  ;  ^  but  in  states  having  common  law  jurisdiction,  it  exists, 
in  criminal  cases,  at  common  law.^ 

II.    OATH  AND  ITS  INCIDENTS. 

§  386.  An  oath  is  defined  by  Savigny  to  be  the  assurance  of 
the  truth   of  an  assertion  by  an  appeal  to  an  obiect    . 

.         .  ••  An    appeal 

(Gegenstand),  which  is  regarded  by  the  person  swear-  toahigUer 
ing  as  high  and  lioly.^  Mr.  Best^  gives  a  narrower 
definition,  holding  that  "an  oath  is  an  application  of  the  relig- 
ious sanction  ; "  and  that  it  is  "  calling  the  Deity  to  witness  in 
aid  of  a  declaration  by  man."  To  this  effect  he  quotes  Lord 
Coke,^  and  Bonnier,*^  who  declares  "  Le  serment  est  I'attestation 
de  la  Divinity  a  I'appui  d'une  declaration  de  I'homme."  Yet  if 
we  are  now  to  regard  an  affirmation  as  equivalent,  when  given 
under  the  same  sanction,  to  an  oath,  and  if  we  accept  the  rul- 
ings which  permit  atheists  to  testify  under  affirmation,  we  must 
fall  back  on  Savigny's  definition  as  more  fully  in  correspondence 
with  the  present  state  of  the  law.  It  is  worth  while,  in  this 
view,  to  remember  that  the  Romans  allowed  a  wide  margin 
in  the  objects  to  which  such  appeal  could  be  made.  An  oath, 
for  instance,  could  be  "  per  saluteni  tuam,  per  caput  tuum,  vel 
filiorum,  per  genium  principis,"  even  "  propriae  superstitione," 
though  not  "improbatae  publice  religionis,"  which  oath  was  for- 
bidden, and  was  held  void.*^     After  the  establishment  of  Chris- 

1  The  federal  stat.  of  Aug.  8,  1846,  cognizance  to  appear  at  the  assizes  to 
§  7  (Brightly,  2G7),  authorizes  this  in  prosecute  for  felony;  Ex  parte  Wil- 
"  any  criminal  cause  or  proceeding  in  lianis,  13  Price,  670;  M'Clel.  493, 
which  the  United  States  shall  be  a  S.  C. ;  but  the  better  opinion  is,  that 
party  or  interested."  a  justice  is  not  authorized  to  commit 

2  Jt  has  been  held  in  England,  that  any  witness  for  refusing  to  find  sure- 
where  a  married  woman,  who  could  ties  to  be  bound  with  him,  ])rovided 
not  enter  into  her  own  recognizance,  he  be  willing  to  enter  into  liis  own 
refused  either  to  appear  at  the  ses-  recognizance.  Per  Graham,  H.,  as  cited 
sions  or  to  find  sureties  for  her  appear-  2  Burn's  Just.  122;  per  L<1.  Denman 
ance,  she  could  be  committed,  in  order  in  Evans  v.  llecs,  12  A.  &  E.  59; 
that  she  might  be   forthcoming  as  a  Taylor's  Ev.  §  1117. 

witness  at  the  trial.     Bennet  v.  Wat-  ^  Savigny,  Iltim.  Kecht.  VIII.  48. 

son,  3  M.  &  Sel.  1.     It  is  also  argued  ■•  Evidence,  §  57. 

that  a  recognizance   to   prosecute   or  ''3  Inst.  1G5. 

give  evidence  is  binding  on  an  infant;  *  Traile  des  Prcuves,  §  340. 

and  it  has  been  held  that  infancy  is  no  ^  L.  5,  pr.  §1,3;  De  jur.  xii.  2. 

ground  for  discharging  a  forfeited  re- 

845 


§  386.] 


THE  LAW   OF  EVIDENCE. 


[book  n. 


tianity,  and  among  Christians,  the  appeal  was  exclusively  to 
God,i  |3^t  in  the  present  day,  there  is  little  doubt  that  even 
without  a  statute,  a  positivist,  who  holds  to  cosmical  develop- 
ment, excluding  a  Divine  Providence,  would  be  allowed  to  testify 
upon  affirmation.^  But  in  any  view,  an  appeal  of  this  class, 
solemnly  made,  apart  from  the  fact  that  falsehood  uttered  after 
such  an  appeal  is  indictable  as  perjury,  gives  an  assurance, 
amounting  to  primd  facie  proof,  that  the  assertion  made  by  the 
witness  corresponds  with  his  consciousness  of  right  and  truth,  — 
"  Est  enim  jusjurandum  affirmatio  religiosa."  ^  It  is  final,  so  far 
as  the  case  is  concerned,  for  an  oath  is  administered  to  a  witness 
but  once  in  a  cause,  no  matter  how  often  he  may  be  recalled.* 


^  See  Com.  v.  Winnemore,  2  Brewst. 
378;  Savigny,  ut  supra. 

2  See  infra,  §  395. 

8  Cic.  de  Oflf.  iii.  29. 

*  Bullock  V.  Koon,  9  Cow.  30. 

In  the  Roman  law  an  oath  may  be 
used  to  give  certainty  either  to  a 
promise  as  to  the  future,  or  a  state- 
ment as  to  the  past. 

An  oath,  when  used  for  obligatory 
purposes  to  strengthen  a  promise  to  do 
something  in  the  future,  is  called  by 
the  ]nvi&ti,  jusjurandum  promissorium. 
Under  this  head  may  be  mentioned 
oaths  of  public  officers,  of  executors 
and  administrators,  and  of  guardians; 
Savigny,  Rom.  Recht.VIII.  49;  and  the 
oaths  of  parties  to  be  hereafter  noticed. 

Oaths,  when  used  by  witnesses  as 
assurances  of  the  truth  of  statements 
as  to  the  past  (including  the  witness's 
present  belief  as  to  past  circum- 
stances), are  the  ordinary  prerequi- 
sites to  the  admission  of  witnesses  to 
testify  in  courts  of  justice.  It  is  true 
that  by  statute  persons  who  consci- 
entiously object  to  oaths  are  permit- 
ted, by  our  practice,  to  affirm  instead 
of  swearing  to,  the  truth  of  their  state- 
ments; but  the  difference  between  the 
affirmation  so  imposed,  and  the  oath, 
is  merely  verbal. 

A  party  could  extra-judicially  take 
346 


for  certain  uses  in  a  cause  in  litiga- 
tion ajuramentum  voluntarium,  or  vol- 
untary oath.  To  such  oath  he  was 
not  compelled ;  but  he  was  entitled 
to  make  it  in  order  to  obtain  cer- 
tain processual  advantages  in  the  suit. 
See  L.  31  ;  L.  34,  §  6,  9;  xii.  2;  L. 
3-12;  Cod.  h.  t.  iv.  1.  To  such 
oaths  we  may  liken  our  own  affidavits 
for  the  purposes  of  obtaining  contin- 
uances and  new  trials  on  the  ground 
of  after-discovered  evidence.  In  the 
earlier  Roman  practice,  such  oaths 
might  cover  such  admissions  as  to  the 
merits  of  a  case  as  might  warrant  a 
judgment.  (See  citations  in  last  note.) 
The  term  juramentum  voluntarium, 
however,  was  generally  used  as  con- 
vertible with  our  own  voluntary  non- 
processual  affidavits,  and  could  not  in 
themselves  be  invested  with  contract- 
ual force.     See  L.  17,  h.  t.  xii.  2. 

In  the  same  law,  the  imposition  of 
the  oath  was  originally,  in  civil  cases, 
discretionary  with  the  judex.  By  a 
decree  of  Constantine,  the  oath  was 
obligatory  in  all  cases,  and  was  to  be 
imposed  before  the  examination.  L. 
9,  C.  iv.  20.  By  the  canon  law, 
which  declared  the  oath  to  be  an  es- 
sential solemnity,  juids  gentium  et  ju- 
ris diimi  (with  this  solemnity  even  the 
Pope  could  not  dispense,  see  Mascard. 


CHAP.  VIII.]        WITNESSES :    OATH    AND  ITS   INCIDENTS.  [§  388. 

§  387.  At  common  law,  the  ceremonies  the   witness  deems 
binding  on  his  conscience  are  to  be  adopted  in  the  im-    witness  to 
position  of    the    oath.^      But   the   fact  tliat  a  witness    inform  he 
permits  himself,  without  objection  on  his  part,  to  be   ^^(|s'"*uii 
sworn  by  an  oatli  he  does  not  deem  binding,  does  not   ^tory. 
reKeve    him  from    a  prosecution   for    perjury,  if   his  testimony 
be  wilfully  false. ^     When  a  witness,  after  being   sworn,  states 
that  he  considers   the  oath    binding,  he   cannot  afterwards    be 
asked  whether  he  considers  another  form  of  oath  more  binding.^ 
There  is  no  reason  why  he  should  not  be  asked  by  the  court  as 
to  his  religious  belief,  without  being  sworn.     His  extra-judicial 
declarations  to  the  same  effect  are  admissible  when  proved  by 
witnesses  who  heard  him  speak  ;  a  fortiori  his  declarations  made 
in  the  presence  of  the  court.* 

§  388.  As  a  cumulative  relief,  statutes  have  been  adopted  in 

England  and  in  the  United  States,  enabling  persons   ^^^^^^^ 

who  are  conscientiously  opposed  to  take  an  oath,  to   tions  may 

testify  under  the  form  of  a  solemn  affirmation.^     It  is   tuted  for 

scarcely  necessary  to  say  that  for  false  testimony  given 

c.  1362;  Lanfranc,  de  Or.  L.  C.  No.  1 ;  competent  to  take  an  oath,  such  pcr- 

Endemann,  229),  tlie  witness  was  to  son  shall,  if  the  presiding;  judge,  is  sat- 

be  sworn  as  a  preliminary  to  his  exam-  isfied   that  the  taking  an  oath  would 

ination.     Durant,  I.   4,  de   test.  §  4;  have   no  binding  effect   on    liis   con- 

Lanfranc,  No.  6.  science,  make  '  a  solemn  promise   and 

^  Oinichund  I'.  Barker,  Willes,  538;  declaration;'    and  then,   if  false   evi- 

S.  C.  1  Smith  L.  C.  381 ;  TheMerrimac,  dence  be  wilfully  and  corruptly  given 

1  Ben.  490;  Fuller  I'.  Fuller,  17  Cal.  605.  by  him,  he   shall   be  liable  to  indict- 

2  Sells  V.  Iloare,  3  B.  &  B.  232;  5.  ment  for  perjury."    The  form  adopted 

C.   7  Moore,  36;  State  v.  Keene,  26  under  the  act  is:  "  I  solemnly  promise 

Me.    33;  Com.   v.   Knight,    12   Mass.  and  declare  that  the   evidence   given 

274;    Campbell    v.   People,  8    "Wend,  by  me  to  the  court  shall  be  the  truth, 

636;  Thomas  v.  Com.    2    Rob.    795;  the  whole  truth,  and  nothing  but  the 

State  I'.  Witherow,  3  Murph.  153;  Mc-  truth."      Such   statutes,  liowcver,  as 

Kinney   v.    People,    7    111.   540.      See  Mr.    Taylor    (Taylor's    Evidence,    § 

Whart.  Cr.  Law,  §  2205.  1248)  justly  observes,  leave  the  relig- 

2  Queen's  case,  2  B.  &  B.  284.  ious  faith  of   a  proposed  witness  still 

*  See  Maden  v.  Catanach,  7  II.  &  open  to  inquiry  by  the  courts.  For, 
N.  360;  R.  v.  Serva,  2  C.  &  K.  56.  first,  the  person  called  as  a  witness 
See  infra,  §  543.  must  either  object  to  take  an  oath,  or 

*  The  English  statute,  passed  in  be  objected  to  as  incompetent ;  and, 
1869,  provides  that  "if  any  person  next,  the  judge  is  required  to  satisfy 
called  to  give  evidence  in  any  court  himself  that  the  taking  the  oaiii  by 
of  justice  ....  shall  object  to  take  such  jjcrson  would  have  no  effect  on 
an  oath,  or  shall  be  objected  to  as  in-  his  conscience. 

^  347 


§  389.]  THE   LAW    OF   EVIDENCE.  [BOOK  II. 

under  an  affirmation,  the  witness  is  as  much  exposed  to  a  prose- 
cution for  perjury  as  if  he  had  been  formally  sworn.^  But  the 
right  to  be  affirmed,  in  those  states  which  make  conscientious 
objections  the  test,  cannot  be  granted  to  a  witness  who  has  no 
conscientious  objection  to  an  oath.^ 

III.     PRIVILEGE    FROM    ARREST. 

§  389.  A  witness,  when  on  attendance  on  a  court  of  justice,  is 
not  protected  from  arrest  on  a  criminal  prosecution.^ 
not  privi-  From  arrest  on  civil  process  a  witness  is  protected,  not 
criminal  Only  while  in  attendance  on  the  court,  but  when  going 
otherwise  to  and  returning  from  it ;  in  other  words,  eundo,  mo- 
as  to  civiL  '^•(indo^  et  redeundo.  The  rule  is  the  same  whether  the 
witness  attends  voluntarily  or  on  compulsion,  and  whether  the 
tribunal  he  attends  be  a  court  and  jury,  or  a  commissioner  or 
other  officer  authorized  to  take  testimony.'*  A  summons,  by  the 
English  practice,  will  not  be  set  aside  because  it  is  served  on  a 
witness  during  his  attendance  on  court ;  ^  though  to  serve  such 
a  writ  on  the  witness,  in  the  presence  of  the  court  on  which  the 
witness  is  in  compulsory  attendance,  may  be  a  contempt  of  the 
latter  tribunal.^  A  summons  served  under  such  circumstances 
may  be  set  aside,  also,  if  it  appears  that  the  attendance  of  the 
witness,  a  resident  of  another  state,  was  secured  in  order  to  bring 
him  within  the  range  of  the  summons.  "  It  is  the  policy  of  the 
law,"  so  it  is  said,  "  to  protect  suitors  and  witnesses  from  arrests 
upon  civil  process  while  coming  to  and  attending  the  court,  and 
while  returning  home,  and  their  immunity  from  the  service  of 

1  See  U.    S.  V.    Coolidge,  2    Gall.     L.  Cas.  671  ;  Gibbs  v.   Newton,  6   A. 
364.  &  E.  623 ;  Jewett,  in  re,  33  Beav.  559; 

2  Williamson  ?;.  Carroll,   16  N.  J.     Wood  u .  Neale,  5  Gray,  538;  Sanford 
L.  217.  V.  Chase,  3  Cow.  381 ;  Seaver  v.  Rob- 

8  Douglass,  in  re,  3  Q.  B.  837.  inson,  3  Duer,  622;  Ballinger  v.  El- 

*  Meekins  v.  Smith,  1   H.  Bl.  636 ;  liott,  72  N.  C.  596.  See  Rogers  v.  Bul- 

Rishton  v.  Nisbett,  1  M.  &  Rob.  347;  lock,  2  Pening.  516;  Marshall  v.  Car- 

Willingham   v.    Matthews,    6   Taimt.  hart,  20  Ga.  419. 

358;   Walpole  v.  Alexander,  3  Doug.  ^  Yqq\q  y.  Gould,  1  H.  &  N.  99. 

45;  Temple,  ex   parte,   2  Ves.  &   B.  «  Cole   v.   Hawkins,   2    Str.    1094; 

395 ;  Strong  v.  Dickenson,  1  M.  &  W.  Poole  v.  Gould,  1  H.  &  N.  100;  Ard- 

491;  Kimpton  v.  R.  R.  9  Ex.  R.  766;  ing   v.    Flower,    8    T.    R.    534.     See 

Pitt  V.  Coomes,  5  B.  &  Ad.  1078;  3  N.  Blight  v.   Fisher,    1    Pet.    C.  C.  41; 

&  M.  212;  Spencer  v.  Newton,   6  A.  Miles  v.  McCuUough,  1  Binn.  77. 

&  E.  623  ;  Persse  v.  Persse,  5   H.  of 

348 


CHAP.  VIII.]  WITNESSES  :    WHO   ARE    COMPETENT.  [§  391. 

process  for  the  commencement  of  civil  actions  against  them  is 
absohite,  eundo,  morando,,  et  redeundo^  Accordingly,  where  a 
summons  was  served  upon  a  resident  of  another  state,  while  at- 
tending in  New  York  in  good  faith  as  a  witness,  it  was  held  tliat 
an  order  setting  aside  the  summons  was  proper  and  should  be 
affirmed.!  The  privileges  of  witnesses  attending  before  a  com- 
mittee of  Congress  cover  immunity  from  arrest,  but  not,  it  is  said, 
from  civil  service.^ 

§  390.  It  has  been  held  in  this  country  that  a  witness  may 
waive  his  privilege,  and  by  submitting  to  be  taken  into 
custody    without    protest,    lose    his    right   to    proceed    niay  waive 
against  those  by  whom  he  is  imprisoned.^     In  England,    iiege  from 
on  the  ground  that  the  privilege  is  one  belonging  to 
the  courts,  and  not  to  the  individual,  a  witness,  after  an  unlawful 
arrest  of  the  character  above  mentioned,  does  not,  by  any  subse- 
quent laches  of  his  own,  lose  his  right  of  redress  for  the  ille- 
gal imprisonment.*     When,  however,  the  interests  of  other  par- 
ties are  imperilled  by  a  long  delay  in  an  application  for  release 
by  a  party  so  arrested,  the  courts  may  refuse  to  grant  the  appli- 
cation.^ 

IV.    WHO    ARE  COMPETENT   WITNESSES. 

§  391.  While  credibility  is  for  the  jury,  under  the   instruc- 
tions of   the  court,  competency  is  exclusively  for  the 

'  ^  -^      .        .  •'  Conipe- 

court.  Whatever  may  be  the  objection  to  the  compe-  tency  is 
tency  of  a  witness,  whether  interest,  insanity,  infancy, 
or  public  policy,  if  it  goes  to  incompetency  for  the  purpose  for 
which  the  witness  is  called,  it  must  be  determined  by  the  judge. 
Ordinarily,  as  we  will  presently  see,  the  objection  must  be  taken, 
when  known,  before  the  witness  is  sworn.  In  order  to  substan- 
tiate the  objection,  the  witness,  as  we  will  see,  may  be  oxam- 

^  Person   v.   Pardee;    Opinion    by  ^  Brown  i».  Getclu'll,    11    Mass.  11; 

^ Allen,  J.,  decided  April  28,  18G6,   N.  Geyer  i-.  Irwin,  4  Dall.  107. 

'Y.   Ct.  of  Appeals.      Sec  M'Neil,  c.x  *  Magnay    v.    Burt,   5  Q.    H.   :}0;J  ; 

parte,  6  Mass.  2G4;  Cole  V.  McClollan,  Cameron    v.   Li-,ditfoot,   •>   W.   Black. 

4  Hill,  59;   Sanford  v.  Chase,  3  Cow.  119:};  Webb  c  Taylor,  1  Dowl.  &  L. 

381;   Dixon  v.  Ely,  4  Edw.   Ch.  557;  684. 

Seavcrv.  Robinson,  3  Duer,  622;  INIcr-  ^  Andrews  r.  Martin,  12  C.  B.  (N. 

rill  r.  George,  23  How.  Pr.  331.  S.)  372;  Greenshield   v.  Pritehard,  8 

2  Wilder   v.   Welsh,    1    McArthur,  M.  &  W.  148. 


566. 


349 


§  393.] 


THE   LAW   OF   EVIDENCE. 


[book  n. 


ined,  according  to  the  old  practice,  on  the  voir  dire  ;  or  being 
sworn  in  chief,  his  examination  may  be  arrested  by  interroga- 
tions from  the  opposite  party,  as  to  his  competency.^  But  by 
the  court  must  the  objection,  whenever  it  is  made,  be  deter- 
mined.2 

§  392.  The  hiw  on  grounds  of  policy,  presumes  that  all  wit- 
All  wit-  nesses  tendered  in  a  court  of  justice  are  not  only  com- 
°umed  ^^^'  petent  but  credible.  If  a  witness  is  incompetent,  this 
competent,  niust  be  shown  by  the  party  objecting  to  him  ;  ^  if  he 
is  not  credible,  this  must  be  shown,  either  from  his  examina- 
tion, or  by  impeaching  evidence  aliunde,^  Hence,  so  far  as 
competency  is  concerned,  if  the  evidence  is  in  equipoise,  the 
witness  should  be  admitted.^ 

A  party  who  knows  objections  to. the  competency  of  a 
witness  cannot,  so  it  has  been  held,  hold  back  such  ob- 
jections until  the  witness  has  been  examined,  and  then 
raise  the  objections  if  the  witness's  testimony  prove  un- 
favorable.^    But  it  is   otherwise  when   the   objecting 


§  398. 

Ordinarilj' 
incompe- 
tency 
should  be 
objected  to 
before  oath 


1  See  infra,  §  492. 

^  See  cases  cited  infra  ;  and  see 
R.  V.  Perkins,  2  Mood.  C.  C.  135; 
State  u.  Wliittier,  21  Me.  341;  Dole 
V.  Thurlow,  12  Mete.  157;  Com.  v. 
Burke,  16  Gray,  33  ;  Cook  v.  Mix, 
11  Conn.  432;  Com.  v.  Lattin,  29 
Conn.  389;  Reynolds  v.  Lounsbury,  6 
Hill,  534;  State  v.  Catskill  Bk.  18 
Wend.  466  ;  Perry's  case,  3  Grat.  632; 
Rohrer  v.  Morningstar,  18  Oh.  579; 
Draper  v.  Draper,  68  111.  17;  Peter- 
son V.  State,  47  Ga.  524;  Chouteau  v. 
Searcy,  8  Mo.  733 ;  State  v.  Scanlan, 
58  Mo.  204;  Anderson  v.  Maberry,  2 
Heisk.  653.  See  Johnson  r.  Kendall, 
20  N.  H.  304,  intimating  that  where 
doubts  as  to  competency  arise  during 
the  examination,  though  the  question 
is  primarily  for  the  court,  it  may  be 
ultimately  submitted  to  the  jury.  S. 
P.,  Lee  V.  Welsh,  1  Weekly  Notes  of 
Cases,  453. 

8  Carrington  v.  Holabird,  17  Conn. 
536  ;  Snyder  v.  May,  19  Penn.  St.  235; 
Pegg  r.  Warford,  7  Md.  582;  Dens- 
350 


ler  V.  Edwards,  5  Ala.  31;  Richardson 
V.  Hage,  24  Ga.  203. 

*  See  infra,  §  551  et  seq. ;  Willey  v. 
Portsmouth,  35  N.  H.  303. 

5  Johnson  v.  Kendall,  20  N.  H.  304; 
Duel  V.  Fisher,  4  Denio,  515;  Watts 
V.  Garrett,  3  Gill  &  .  J.  355.  See, 
however.  Story  v.  Saunders,  8  Humph. 
663. 

6  Howell  V.  Lock,  2  Camp.  14;  R. 
V.  Frost,  9  C.  &  P.  183;  Dowdney  v. 
Palmer,  4  M.  &  W.  664;  Stuart  v. 
Lake,  33  Me.  87;  Com.  v.  Green,  17 
Mass.  515;  Donelson  v.  Taylor,  8  Pick. 
390;  Lewis  v.  Morse,  20  Conn.  211  ; 
though  see  Needham  v.  Smith,  2  Yarn. 
463;  Yardley  v.  Arnold,  C.  &  M.  437; 
Jacobs  V.  Layburn,  11  M.  &  W.  685; 
Heely  v.  Barnes,  4  Denio,  73;  Howser 
V.  Com.  51  Penn.  St.  332;  Baugher 
V.  Duphorn,  9  Gill,  314;  Groshon  v. 
Thomas,  20  Md.  234;  Hudson  v. 
Crow,  26  Ala.  515;  Drake  v.  Foster, 
28  Ala.  649;  Levering  v.  Langley,  8 
Minn.  107. 


CHAP.  Vm.]  WITNESSES  :    WHO   ARE   COMPETENT.  [§  394. 

party  is  not  aware  of  the  full  force  of  the  objection  until  the 
examination  has  begun. ^  The  objection,  however,  if  discovered 
during  the  examination  in  chief,  must  be  made  before  cross-ex- 
amination.2  When  a  witness,  after  verdict,  is  discovered  to 
have  been  incompetent,  and  this  without  any  laches  on  the  part 
of  the  objecting  party,  a  new  trial  may  be  granted,  if  the  evi- 
dence of  the  witness  was  material,  or  if  the  party  offering  this 
evidence  is  tainted  with  suspicion  of  impropriety  in  concealing 
the  incompetency.^  But  where  the  objection  could  have  been 
taken  during  the  trial,  a  new  trial  will  be  refused,  nor  can  the 
objection  be  noticed  on  error.^ 
/^.,^-f  394.  The  distinction  between  secondary  and  primary  evi- 
'''^  dence,  which  is  applied  to  written  instruments,  is  not  Distinction 
applicable  to  witnesses.  A  copy  of  an  instrument  can-  secondary 
not  be  received  as  long  as  the  original  is  attainable;  niaJdoes 
when  the  best  documentary  evidence  is  to  be  had,  an  not^appiy 
inferior  medium  for  the  transmission  of  the  same  sub-  nesses. 
ject  matter  will  be  rejected.  It  is  otherwise,  however,  when  we 
come  to  compare  witnesses  with  each  other ;  a  witness  of  weak 
memory  or  of  bad  reputation  will  not  be  excluded  because  a 
witness  remarkable  for  veracity  and  clear  headedness  is  kept 
back.  A  witness,  no  matter  how  reliable,  cannot  be  permitted 
to  give  the  contents  of  a  written  instrument  that  could  be  pro- 
duced ;  but  no  witness,  no  matter  how  unreliable,  can  be  ex- 
cluded because  another,  more  authoritative,  is  not  called.^  A 
witness  who  has  heard  A.  say  certain  things  can  be  received, 
though  A.  himself  might  have  been  examined,  but  is  not ;  ^  and 

1  See  R.  V.  Whitehead,  L.  R.  1  C.  son  v.  Barron,  37  N.  H.   404  ;  Snow 

C.  33;  S.  C.  10   Cox,   234;  Vaughan  v.  Batohelder,  8  Cush.  513;  Spaulding 

V.  Worrall,  2  Madd.   322 ;  Selway  v.  v.  Hallenbeck,  35  N.  Y.  204 ;  Hoes  v. 

Chappell,  12  Sim.  113;  State  v.  Dam-  Livingston,   41   Ponn.  St.  113;  Mcln- 

ery,  48  Me.  327;  Shurtleff  r.  Willard,  roy  v.  Dyer,  47  Penn.  St.  118;  House 

19  Pick.  202;  Andre  v.  Bodman,   13  v.  House,  5  Ind.  237;    State  v.  Scott, 

Md.  241  ;  Veiths  v.  Hagge,  8  Iowa,  1  Bailey,  270. 
163.  ^  See    supra,    §    90.     Governor    v. 

*  Sheridan  v.  Medara,  10  N.  J.  Eq.  Roberts,  2  Hawks,  2G ;  Green  v.  Caw- 

469;  Brooks  v.  Crosby,  22  Cal.  42.  thorn,  4  Dev,  L.  409. 

8  Wade  V.   Simeon,    2    C.  B.   342.         «  Badger  v.   Story,  16  N.  H.  168  ; 

See  Whart.  Cr.  L.  §  3334.  Fcatherman   v.  Miller,  45  Pcnn.    St. 


*  Turner  v.  Pearte,    1  T.   R.    717;     96. 
Essex  Bk.  v.  Rix,  10  N.  H.  201 ;  Jack- 


851 


§  395.]  THE   LAW    OF   EVIDENCE.  [BOOK  II. 

hence  the  admissions  of  a  party  can  be  proved,  tliough  the  party 
himself  is  in  court  to  be  examined  as  to  such  admissions. ^ 

§  395.  By  the  English  common  law,  the  oath  was  an  essential 
Atheism  prerequisite  to  the  admission  of  a  witness  to  testify, 
faw  di™°"  -^^  judicio  71071  cveditur  nisi  juratis?  In  the  leading 
qualifies.  q.^^q  q^  ^j^jg  topic  ^  the  question  came  up  on  the  admis- 
sibility in  evidence  of  depositions  which  had  been  made  on  oath 
by  some  Gentoos  before  a  chancery  commission  in  the  East 
Indies.  It  had  been  thought,  up  to  that  time,  on  the  authority 
of  Coke,^  that  none  but  Christians  were  competent  witnesses. 
He  had  laid  it  down  that  "  an  infidel  cannot  be  a  witness  ;  " 
and  it  was  clear  that,  under  the  designation  of  infidel,  he  class- 
ified all  who  were  not  Christians.  But  Willes,  C.  J.,  ruled 
that  Lord  Coke's  proposition  was  "  without  foundation,  either 
in  Scripture,  reason,  or  law  ;  "  and  proceeded  to  declare,  in  an 
opinion  which  has  not  since  been  questioned,  that  '.'  Such  infi- 
dels who  believe  in  God,  and  that  He  will  punish  them  if  they 
swear  falsely  (in  some  cases  and  under  some  circumstances), 
may  and  ought  to  be  admitted  as  witnesses  in  this,  though  a 
Christian  country."  And,  "  Such  infidels,  if  any  such  there  be, 
who  either  do  not  believe  in  God,  or,  if  they  do,  do  not  think 
that  he  will  either  reward  or  punish  them  in  this  world  or  in  the 
next,  cannot  be  witnesses  under  any  case  or  under  any  circum- 
stances, for  the  plain  reason,  because  an  oath  cannot  possibly  be 
any  tie  or  obligation  upon  them."^  It  may  therefore  be  regarded 
as  settled  that  by  the  Anglo-American  common  law  an  atheist 
is  inadmissible  as  a  witness,  independently  of  the  statutes  per- 
mitting affirmations  to  be  substituted  for  oaths  ;  *^  though  it  is 
sufficient  for  admissibility,  that  the  witness  proposed  believes  in 
a  Supreme  Being  who  dispenses  retribution  in  this  life  alone." 

1  Infra,  §  1175  et  seq.  Whitney,  2   Cush.    104  ;    Beardsly  v. 

2  2  Salk.  512  ;  1  Bl.  Com.  402.  Foot,  2  Root,  399  ;  Atwood  v.  Welton, 
8  Omichund  V.  Barker,  Willes,  538;     7  Conn.  66;  People  v.  McGarren,  17 

1  Sm.  L.  C.  194.  Wend.  460;  Anderson  v.  Maberry,  2 

*  Co.  Litt.  6,  b.  Heisk.  653.     Otherwise,  when  an  af- 

^  See  Maden  v.   Catanach,  7  H.  &  firmation  is  permitted.     Supra,  §  386. 

N.  360;  31  L.  J.  Ex.  118.  ">  Omichund  v.  Barker,  Willes,  538; 

«  Maden  v.  Catanach,   7  H.   &  N.  Wakefield  v.  Ross,  5  Mason,  18;  U.  S. 

360;    Smith   v.    Coffin,    18  Me.    157;  v.  Kennedy,  3  McLean,  175;  Hunsoom 

Norton  v.  Ladd,  4  N.  H.  444;  Arnold  v.   Hunscom,   15  Mass.  184;  Butts  v. 

V.  Arnold,  13  Vt.  363;  Thurston  v.  Swartwood,  2  Cow.  431;  People  r. 
352 


CHAP.  VIII.] 


WITNESSES:    IRRELIGION. 


[§  396. 


By  statute,  however,  in  England  and  in  most  parts  of  the  United 
States,  religious  disbelief  no  longer  disqualifies  ;  nor  at  common 
law  can  defect  in  such  belief  be  a  ground  of  exclusion  in  jurisdic- 
tions which  permit  the  substitution  of  an  affirmation  for  an  oath.^ 
§  396.   Where  religious  disbelief  operates  to  incapacitate,  the 
burden  is  on  the  party  endeavoring  thus  to  exclude  a   „ . 
witness,  all  persons  being  presumed  to  have  a  religious   may  be 
belief  such  as  entitles  them  to  be  sworn.^     It  is  compe-   religious 
tent,  under  such  a  rule,  at  any  time  before  the  witness 
is  sworn,  to  introduce  testimony  to  show  his  defect  in  this  rela- 
tion.^    Whether  he  can  himself  be  examined  on  his  voir  dire  as 
to  his  reliffious  belief  has  been  doubted.     The  affirmative  has 


Matteson,  2  Cow.  433  ;  Brock  v.  Mil- 
ligan,  10  Ohio,  125;  Shaw  v.  Moore, 
4  Jones  L.  25;  Jones  v.  Harris,  1 
Strobh.  160;  Blocker  v.  Burness,  2 
Ala.  354;  Cubbison  v.  McCreary,  2 
Watts  &  S.  262;  Bennett  v.  State,  1 
Swan,  411;  Blair  v.  Seaver,  26  Penn. 
St.  274. 

1  Supra,  §386.  Com.  v.  Burke,  16 
Gray,  33;  Perry's  case,  3  Grat.  632; 
People  V.  Jenness,  5  Mich.  305;  Fuller 
V.  Fuller,  1  7  Cal.  605. 

The  following  summary  of  the 
older  cases  may  be  still  not  without 
value:  In  Pennsylvania,  it  was  directly 
decided  that  the  true  test  of  the  com- 
petency of  a  witness,  on  the  ground 
of  his  religious  principles,  is,  whether 
he  believes  in  the  existence  of  a  God 
who  will  punish  him  if  he  swear  false- 
ly. Cubbison  v.  M'Creary,  2  W.  &  S. 
262.  See  Com.  v.  Winnemore,  2 
Brewster,  3  78;  Blair  v.  Seaver,  26 
Penn.  St.  274.  Hence  those  are  com- 
petent who  believe  future  punishment 
not  to  bti  eternal.  Cubbison  v.  M'Crea- 
ry, 2  W.  &  Serg.  262.  See  Butts  v. 
Swartwood,  2  Cowen,431  ;  Blocker  i'. 
Burness,  2  Ala.  354;  U.  S.  v.  Kennedy, 
3  McLean,  175.  In  Ohio,  it  is  held 
that  a  witness's  belief  that  punish- 
ments for  false  swearing  are  inflicted 
in  this  life  only,  might  go  to  his  cred- 

voL.  I.  23 


ibility.  U.  S.  v.  Kennedy,  3  McLean, 
175.  In  Connecticut,  it  was  formerly 
decided  that  those  who  believe  in  a 
God,  and  in  rewards  and  punishments 
only  in  this  world,  are  not  competent 
witnesses.  Atwood  v.  Welton,  7  Conn. 
R.  66.  The  legislature  of  that  state 
has  since  enacted  that  such  persons 
shall  be  received  as  witnesses.  In 
Massachusetts,  it  has  been  said  that 
mere  disbelief  in  a  future  existence 
goes  only  to  the  credibility.  Hunscom 
V.  Hunscom,  15  Mass.  184.  In  Maine, 
a  belief  in  the  existence  of  the  Su- 
preme Being  is  rendered  sufficient, 
without  any  reference  to  rewards  or 
punishments.  Stat.  1833,  c.  68;  Smith 
V.  Coffin,  6  Shep.  157.  In  South  Car- 
olina, a  belief  in  God  and  his  provi- 
dence has  been  hold  sufficient.  Jones 
V.  Harris,  1  Strob.  160.  In  Illinois 
it  has  been  said  that  a  person  who  has 
no  religious  belief,  nor  belief  in  a  Su- 
preme Being,  and  who.  though  recog- 
nizing his  amenability  to  human  law, 
in  case  he  testifies  falsely,  has  no  sense 
of  moral  accountability,  is  inadmissi- 
ble. Central  Mil.  R.'ll.  r.  Rockafel- 
low,  17  III.  511. 

^  Donnelly  c.  State,  26  N.  J.  L.  163 
8  Anderson  c.  Maberry,  2  IleiskoU, 
653.     See  infra,  §  5  13. 

853 


§  397.] 


THE  LAW   OF  EVIDENCE. 


[book  II. 


sometimes  been  maintained,^  but  without  reason  ;  for  it  is  a 
petitio  prijicipii  to  swear  a  person  in  order  to  determine  whether 
be  can  be  sworn  .^  But  a  witness  cannot,  in  any  view,  be  com- 
pelled to  answer  as  to  special  phases  of  his  creed.^  To  prove 
such  defect  in  religious  belief  as  argues  a  deficiency  in  a  sense  of 
moral  accountability,  the  proper  course  is  to  put  in  evidence  the 
witness's  own  declarations.*  If  the  witness  has  changed  his 
opinion,  this  cannot  be  proved  by  examining  him.  Declarations, 
exhibiting  such  change  of  opinion,  may  be  shown  by  those  to 
whom  such  declarations  were  uttered.^ 

§  397.  At  common  law,  persons  convicted  of  crimes  which  ren- 
Infamj'  in-  der  them  infamous  are  excluded  from  being  witnesses, 
at  common  "  I^famous  "  Crime  in  this  sense  is  regarded  as  compre- 
law.  bending  treason, /g?<9wy,  and  the  crmew/aZsi.^    By  stat- 

utes, however,  adopted  in  England  and  in  most  of  the  United 


1  See  R.  V.  White,  1  Leach,  430; 
Maden  v.  Catanach,  7  H.  &  N.  360; 
K.  V.  Serva,  2  C.  &  K.  56. 

2  Queen's  case,  2  B.  &  B.  284  ;  U. 
S.  V.  White,  5  Cranch  C.  C.  38  ;  Smith 
V.  Coffin,  6  Shepley,  157  ;  Com.  v. 
Smith,  2  Gray,  516;  Com.  v.  Burke, 
16  Gray,  33  :  Com.  v.  Whinnemore,  1 
Brewst.  356  ;  State  v.  Townsend,  2 
Harring.  543.  See  Odell  v.  Koppee, 
5  Heisk.  88. 

8  Doukle  u.  Kohn,  44  Ga.  266.  See 
infra,  §  543. 

"  It  has  sometimes  been  allowed  to 
counsel,"  says  Mr.  Justice  Talfourd, 
"  to  question  witnesses  on  their  voir 
dire  as  to  their  religious  belief  ;  but  it 
may  be  doubted  whether  a  witness 
would  not  be  justified  in  insisting, 
when  so  questioned,  on  the  simple 
answer  that  he  considers  the  oath  ad- 
ministered in  the  usual  form  binding 
on  his  own  conscience,  and  in  declin- 
ing to  answer  further;  for  a  confession 
thus  forced  from  him,  of  a  disbelief  in 
a  state  of  retribution,  would  certainly 
be  esteemed  as  disgraceful  in  a  court 
of  justice,  and  there  seems  no  reason 
why  a  person  should  thus  be  taxed, 

354 


perhaps  to  his  own  infinite  prejudice, 
merely  because  he  appears  to  perform 
a  public  duty  in  obedience  to  a  sub- 
poena. At  all  events,  it  is  quite  clear 
that  a  witness  may  properly  refuse  to 
answer  any  questions  which  go  beyond 
an  inquiry  into  his  belief  in  a  Supe- 
rior Being  to  whom  man  is  answer- 
able; and  that  it  is  the  duty  of  coun- 
sel to  refuse,  however  urged,  to  put 
such  questions,  which  are  altogether 
impertinent  and  vexatious."  6  Dick. 
Q.  S.  535. 

*  Wakefield  v.  Ross,  5  Mason,  19; 
Central  Mil.  R.  R.  v.  Rockafellow,  17 
111.  541;  Curtiss  v.  Strong,  4  Day,  51; 
Jackson  v.  Gridley,  18  Johns.  98. 

5  U.  S.  I'.  White,  5  Cranch  C.  C. 
38  ;  Smith  v.  Coffin,  6  Shepley,  157  ; 
Com.  V.  Wyman,  Thacher  C.  C.  432; 
Atwood  V.  Welton,  7  Conn.  66 ;  Jack- 
son V.  Gridley,  18  Johns.  98  ;  State  v. 
Townsend,  2  Harr.  543;  Com.  v.  Bach- 
elor 4  Am.  Jur.  79. 

6  Phil.  &  Am.  on  Ev.  p.  17;  6  Com. 
Dig.  353,  Testm.  A.  4,  5;  Co.  Litt.  6 
b;  2  Hale  P.  C.  277;  1  Stark.  Evid.  94, 
95;  1  Greenl.  on  Evidence,  §§  372, 
373. 


CHAP.  VIII.] 


WITNESSES:  INFAMY. 


[§  397. 


States,  the  disqualification  of  infamy  is  removed,  but  a  conviction 
may  be  proved  to  affect  credibility.^ 


1  Com,  V.  Gorham,  99  Mass.  420. 
In  Massachusetts,  see  Sup.  Rev, 
Stat.  607,  803.  In  New  York,  see 
Donahue  v.  People,  56  N.  Y.  208. 
In  Michigan,  see  Dickinson  v.  Dustin, 
21  Mich,  561,  In  Ohio,  Brown  v. 
State,  18  Oh,  St,  496.  In  Georgia, 
Frain  v.  State,  40  Ga.  529,  See,  as 
to  impeaching  witnesses  in  this  way, 
infra,  §  567,  In  New  York,  however, 
as  late  as    1869,  all  convictions  of  of- 


tempt  to  procure  the  absence  of  a  wit- 
ness. State  V.  Keyes,  8  Vermont,  57. 
It  is  the  infamy  of  the  crime,  and 
not  the  nature  or  mode  of  the  punish- 
ment, that  destroys  competency;  Gilb. 
Evid,  140  ;  Com,  v.  Shaver,  3  Watts 
&  Serg,  338;  Schuylkill  v.  Coi)ley,  67 
Penn,  St.  386  ;  and,  therefore,  thou^fh 
a  man  had  stood  in  the  pillory  for  a 
libel,  or  for  seditious  words,  or  the 
like,  he  was  not  thereby  disabled  from 


fences  punishable  by  death  or  impris-     being  a  witness  ;  Gilb.  Evid.  140,  141 ; 


onment  in  the  state  prison  made  the 
convict  incompetent  as  a  witness.  See, 
as  applying  this  provision.  People  v. 
Park,  41  N.  Y.  21  ;  aff,  S.  C.  1  Lans, 
263, 


3  Lev,  426,  Outlawry  in  a  civil  suit 
does  not  render  a  man  incompetent  as 
a  witness;  Co.  Lit.  6  b;  2  Hawk.  c. 
46,  s,  21  ;  nor  has  the  mere  commis- 
sion of  any  ofEence  that  effect,  unless 


As  there  are  still  states  which  re-  the  party  have  been  actually  convicted 
tain  the  disqualification  of  infamy,  and  of  it,  Kel,  17,  18;  1  Sid.  51  ;  Cowp. 
as  in  several  states  convictions  of  in-  3.  See  11  East,  309. 
famous  offences  can  be  introduced  to  In  Pennsylvania,  a  person  convicted 
impeach  credibility,  it  ma}^  be  proper  of  arson  in  the  night  time  of  buildings 
to  append,  in  this  place,  a  summary  of  or  board  yards  in  any  city  or  incorpo- 
the  rulings  as  to  infamy.  rated   district   is  incomjjetent  to  tes- 

A  witness  is  rendered  infamous  by  tify.  Act  April  16,  1849,  Pamph.  L. 
a  conviction  in  the  courts  of  his  own 
country  of  a  forgery;  R.  v.  Davis,  5 
Mod%  74;  Poage  v.  State,  3  Oh.  St, 
Rep,  (N.  S.)  239  ;  perjury;  Greenl. 
Ev.  §  673;  R.  v.  Teal,  11  East,  307; 
subornation  of  perjury;  Co,  Lit,  6  b  ; 
6  Com.  Dig,  353,  Testm,  A.  5;  Saw- 


664. 

A  conviction  of  grand  or  petit  lar- 
ceny disqualifies,  Pendock  v.  Mac- 
kinder,  Willes  R.  665  ;  Com,  v.  Keith, 
8  Mete,  531  ;  State  v.  Gardner,  1 
Root,  485;  Lyford  v.  Farrar,  11  Fos- 
ter  (N,   H.),    314,      In   New    York, 


yer's  case,  2  Hale  P,  C.  141;  suppres-  however,  the  latter  has  been  ruled  to 

sion  of  testimony  by  bribery,  conspir-  go   only  to    the  credibility  of   a  wit- 

acy  to  procure  the  absence  of  a  wit-  ness.    Carpenter  i'.  Nixon,  5  Hill,  260. 

ness  ;  Clancy's  case,  Fortesc.  R.  208  ;  If  a  statute  declare  the  perpetrator 

Bushell    V.  Barratt,  Ry,   &   M,   434  ;  of  a  crime  "  infamous,"  this,  it  seems, 

or  consj)iracy   to   accuse    another    of  rendered  him  incompetent  to  testify, 

crime  ;  2  Hale  P.  C.  277  ;  6  Hawk,  P,  1  Phil.  Evid,  p.  18  ;  1  Gilb.  Evid.  by 


C.  c,  46,  s,  101  ;  Co,  Lit.  6  b;  R.  v. 
Priddle,  1  Leach  C,  C,  442  ;  Crowther 
u.Hopwood,  3  Stark.  Rep.  21 ;  1  Stark, 
Evid.  95;  Ville  de  Varsovie,  2  Duds. 
191;  and  barratry;  R.  v.  Ford,  2 
Salk.  690;  Bull.  N,  P.  292,  But  it 
is  said  not  to  be  so  with  the  mere  at- 


Lofft,  256,  257, 

In  Massachusetts,  it  was  said  at 
common  law  that  a  person  convicted 
of  the  offence  of  receiving  stolen 
goods,  knowing  them  to  have  been 
stolen,  is  not  a  competent  witness. 
Com,   V,   Rogers,    7   Mete.    500.      In 

355 


§  398.] 


THE    LAW    OF    EVIDENCE. 


[book  II. 


§  398, 

Admissi- 
bility of 
infants  de- 
pends on 
intelli- 
gence. 


To  infancy  is  peculiarly  applicable  Burke's  illustra- 
tion of  insanity,  as  applied  by  Lord  Penzance,  that 
while  we  know  what  is  day  and  what  is  night,  there 
is  a  region  of  twilight  which  we  can  neither  call  night 
or  day.     A  child  may  be  very  far  from  maturity,  yet 


Pennsylvania,  however,  the  contrary 
doctrine  has  been  advanced  by  a 
learned  judge.  Com.  v.  Murphy,  5 
Penn.  Law  J.  22. 

No  disqualification,  it  was  said  by 
Judge  Washington,  attends  a  convic- 
tion of  assault  and  battery  with  in- 
tent to  kill  ;  U.  S.  V.  Brockius,  3 
Wash.  C.  C.  R.  99  ;  nor,  it  was  ruled 
by  the  supreme  court  of  Pennsylva- 
nia, the  conviction  of  a  sheriff  of  the 
offence  of  bribing  a  voter  previous  to 
his  election  to  the  office.  Com.  v. 
Shaver,  3  Watts  &  Serg.  338. 

A  conviction  of  the  offence  of  ob- 
taining goods  by  false  pretences  does 
not  render  the  party  an  incompetent 
witness ;  Utley  v.  Merrick,  1 1  Mete. 
302;  nor  does  a  conviction  for  ob- 
structing the  passage  of  cars  on  a 
railroad  ;  Com.  v.  Dame,  8  Cush.  384  ; 
nor  for  being  a  common  prostitute ; 
State  V.  Randolph,  24  Conn.  363  ;  nor 
for  keeping  a  gaming  or  bawdy  house; 
R.  V.  Grant,  1  Ry.  &  M.  270;  Deer  v. 
State,  14  Missouri,  348;  Bickel  v. 
Fasig,  9  Casey,  463  ;  nor  for  cutting 
timber ;  Holler  v.  Ffirth,  Penning.  531 ; 
nor  for  conspiracy  to  defraud  by 
spreading  false  news  or  otherwise ;  1 
Greenl.  Ev.  §  373  ;  though  the  last 
point  has  been  ruled  differently  by 
•the  United  States  circuit  court  in  the 
District  of  Columbia.  U.  S.  v.  Por- 
ter, 2  Cranch  C.  C.  R.  60. 

Foreign  convictions.  —  How  far  a 
foreign  judgment  of  an  infamous  of- 
fence disables  a  witness  has  been  the 
subject  of  much  conflict  of  authority. 
In  Massachusetts,  it  has  been  deter- 
mined that  such  conviction  does  not 
attach  disability  ;  and,  after  an  argu- 

356 


ment  of  remarkable  learning  and 
vigor,  the  court  came  to  the  conclu- 
sion that  it  was  not  bound  to  respect 
the  criminal  judgments  of  the  courts, 
either  of  neighboring  states  or  of  a 
foreign  country,  though  the  record  is 
admissible  to  discredit.  Com.  v. 
Green,  17  Mass.  515,  540.  See,  also, 
Campbell  v.  State,  23  Alab.  44.  Such 
seems  also  to  be  the  opinion  of  the 
late  Mr.  Justice  Story ;  Conflict  of 
Laws,  §§  91-93,  104,  620,  625;  and 
of  Mr.  Greenleaf ;  1  Greenl.  on  Ev.  § 
376.  See,  also.  State  v.  Ridgely,  2 
Har.  &  M'Hen.  1 20 ;  Clarke's  Lessee 
V.  Hall,  Ibid.  378  ;  Cole's  Lessee  v. 
Cole,  1  Har.  &  Johns.  572.  The 
force  of  the  three  last  cited  cases, 
however,  is  much  weakened  by  the 
fact  that  in  them  the  rejected  wit- 
nesses were  persons  sentenced  in 
England  for  felony,  and  transported 
as  such  to  Maryland  before  the  Rev- 
olution. In  Virginia  ;  Uhl  v.  Com.  6 
Gratt.  706  ;  and  Alabama  ;  Camp- 
bell r.  State,  23  Ala.  44,  the  record 
is  rejected  altogether.  The  contrary 
opinion  was  held  in  North  Carolina, 
after  an  elaborate  examination,  Hall, 
J.,  dissenting.  State  v.  Candler,  3 
Hawks,  393.  In  New  Hampshire,  a 
conviction  in  another  state  of  a  crime 
which  by  the  laws  of  such  state  dis- 
qualifies the  party  from  being  heard 
as  a  witness,  and  which,  if  committed 
in  New  Hampshire,  would  have  oper- 
ated as  a  disqualification,  is  sufficient 
to  exclude  the  party  from  being  a  wit- 
ness. Chase  v.  Blodgett,  10  N.Hamp. 
22.  See  Hoffman  v.  Coster,  2  Whart. 
453;  U.  S.  V.  Wilson,  Baldw.  R.  90; 
Jackson  v.  Rose,  2  Virjr.  Cas.  34.    See 


CHAP.  VIII.] 


WITNESSES:    INFANCY. 


[§  398. 


be  may  be  equally  far  from  idiocy.  His  memory  may  be  indis- 
tinct, but  tbis  peculiarity  belongs  to  tbe  old  as  well  as  to  tbe 
young.  He  may  be  incapable  of  expressing  bimself  witb  pre- 
cision, but  so  are  multitudes  of  witnesses  wbose  competency  is 
indisputable.  On  the  other  hand,  he  is  comparatively  free  from 
those  prepossessions  by  which  the  perceptive  powers  are  distorted, 
and  he  is  incapable  of  maintaining  a  consistent  false  narrative. 
It  must  be  remembered,  however,  that  these  observations  apply 
only  to  the  border-land  between  infancy  and  maturity ;  to  per- 
mit a  child  of  two,  three,  or  even  four  years,  to  be  sworn  and  ex- 
amined, would  be  trifling  with  public  justice.  Hence  the  dying 
declarations  of  a  child  of  four  years  have  been  rejected ;  ^  and 
the  admissibility  of  children  of  that  age  is  generally  questioned.* 


Com.  V.  Hanlon,  3  Brewster,  461  ; 
Kirscliner  v.  State,  9  Wise.  140;  Wh. 
Confl.  of  Laws,  §§  107,  769. 

Verdict  without  Judgment.  —  Con- 
viction without  judgment  works  no 
disability.  Com.  v.  Gorliam,  99 
Mass.  420  ;  Com.  Dig.  354,  Testm.  A. 
6 ;  R.  u.  Castell  Careinlon,  8  East, 
77;  Lee  v.  Gansell,  Cowp.  3;  Bull. 
N.  P.  392  ;  Fitch  v.  Smallbrook,  T. 
Raymond,  32  ;  People  v.  Whipple,  9 
Cow.  707 ;  People  v.  Herrick,  13 
Johns.  82  ;  Cushman  v.  Loker,  2 
Mass.  108  ;  Skinner  v.  Perot,  1  Ash. 
57  ;  State  v.  Valentine,  7  Ired.  225  ; 
U.  S.  V.  Dickenson,  2  McLean,  325  ; 
Dawley  v.  State,  4  Indiana,  128. 

Prisoners  who  have  pleaded  guilty, 
but  on  whom  no  sentence  has  been 
passed,  are  constantly  admitted  in 
practice  as  witnesses;  and  in  one  of 
these  cases  Baron  Wood  told  the  man 
that  he  would  pass  sentence  upon  him, 
upon  his  plea  of  guilty,  because  he 
fenced  with  the  questions.  Alderson, 
B.,  R.  V.  Ilincks,  2  C.  &  K.  464  ;  S. 
C.  1  Den.  C.  C.  84. 

In  Virginia,  upon  the  trial  of  a  con- 
vict from  the  penitentiary  for  a  fel- 
ony committed  there,  another  convict 
confined  there  for  felony  is  by  stat- 
ute a  competent  witness  for  the  pros- 


ecution.     Johnson's    case,    2    Gratt. 
581. 

Pardon.  —  Disability  by  infamy  may 
be  removed  by  the  production  of  a 
pardon  under  the  great  seal.  As  to 
pardon,  see  fully  Whart.  Cr.  Law,  7th 
ed.  §  705. 

1  Pike's  case,  3  C.  &  P.  598. 

2  People  V.  McNair,  21  Wend.  608. 
While  there  should  be  every  caution 
observed  as  to  the  possibility  of  a  child 
being  tampered  with  by  parents,  or  by 
those  to  whose  influence  they  are  par- 
ticularly subjected,  it  should  be  ob- 
served that,  so  far  as  their  own  action 
is  concerned,  the  ideas  they  receive  are 
much  more  apt  to  be  transferred  un- 
changed to  a  third  person,  than  those 
received  by  adults.  "  To  them,"  it  is 
well  observed  by  Mr.  Amos  (Great 
Oyer,  27  7),  "  it  is  a  matter  of  interest 
to  pay  particular  attention  to  the  i)re- 
cise  words  which  people  utter  in  their 
presence.  They  are  usually  passive 
recipients  of  other  persons'  ideas  and 
expressions;  whereas  a  grown  person, 
when  he  hears  a  statement,  is  apt  to 
(■ont«Mit  himself  with  the  substance  of 
it,  and  to  modify  it  in  his  own  mind, 
ami  may  l)e  aflerwanls  unable  to  trace 
back  his  ideas  to  the  original  inipres- 
sions." 

357 


§  400.]  THE   LAW   OF  EVIDENCE.  [BOOK  II. 

On  the  other  liancl,  the  testimony  of  a  child  between  four  and 
five,^  and  of  a  child  between  six  and  seven,  have  been  received  on 
the  trial  of  an  indictment  for  an  attempt  to  ravish.^  Wherever 
there  is  intelligence  enough  to  observe  and  to  narrate,  there  a 
child,  a  due  sense  of  the  obligation  of  an  oath  being  shown,  can 
be  admitted  to  testify.^ 

§  399.  The  rule  by  which  an  infant  under  seven  years  of  age 
cannot  commit  a  felony,  because  the  law  presumes  him  conclu- 
sively not  to  have  sufficient  intelligence  for  the  act,  has  no  anal- 
ogy in  the  law  of  evidence.*  Age,  at  least  after  four  years  are 
past,  does  not  touch  competency ;  and  the  question  is  entirely 
one  of  intelligence,  which,  whenever  a  doubt  arises,  the  court,  as 
we  will  presently  see,  will  determine  to  its  own  satisfaction,  by 
examining  the  infant  on  his  knowledge  of  the  obligation  of  an 
oath,  and  the  religious  and  secular  penalties  of  perjury.  On  the 
other  hand,  while  tender  age  does  not  by  itself  exclude,  an  infant 
cannot,  when  wholly  destitute  of  religious  education,  be  made 
competent  by  being  superficially  instructed  just  before  a  trial, 
with^a  view  to  qualify  him.^ 

§  400.  Competency  in  such  case  being  for  the  court,  the  court 
may,  by  a  preliminary  examination,  probe  the  witness's  intel- 
ligence.^     It   will   require   a  strong  case   to  sustain  a  reversal 

1  R.  I'.  Holmes,  2  F.  &  F.  788.  196  ;  State  r. Morea,  2  Ala.  275;  Wade 

2  R.  V.  Brazier,  1  Leach,  199;  S.  C.  v.  State,  50  Ala.  164;  State  v.  Denis, 
lEast  P.  C.  443;  Com.  v.  Hutcliinson,  19  L.  An.  119;  States.  Scanlan.  58 Mo. 
10  Mass.  225;  State  v. Morea,  2  Ala.  204;  Vincent  v.  State,  3  Heisk.  120; 
275;  and  see,  to  same  effect,  observa-  Logston  v.  State,  3  Heisk.  414;  Flan- 
tions  of  Alderson,  B.,  in  R.  v.  Perkin,  agin  v.  State,  25  Ark.  92;  Warner  v. 
2  Moo.  C.  C.  139  ;  Anonymous,  2  Pen.  State,  25  Ark.  447  ;  Davidson  t'.  State, 
(N.  J.)  930;  Washburn  v.  People,  10  39  Tex.  129.  See,  as  to  the  Ohio  limit 
Mich.  372;  State  v.  Le  Blanc,  Mill  of  ten  years,  Act  of  February  14,  1859, 
(S.  C),  354  ;  S.  C.  3  Brev.  339.  §  1.     As  to  same  limit  in  Missouri,  see 

8  R.  V.  Powell,  1  Leach,  110  ;  R.  v.  State  v.  Scanlan,  58  Mo.  204. 
Brazier,    1    Leach,    199;    R.   v.  Wil-        *  Per  Patteson,  J.,  R.   r.  Williams, 

liams,  7  C.   &  P.  320;  R.  v.  Travers,  7  C.  &  P.  320. 

2  Str.  700 ;  State  v.  Whittier,  21  Me.         5  1  Leach,  430,  n.  ;  R.  i".  Nicholas, 

341;  State   v.  De  Wolf,   8   Conn.  98;  2  C.  &  K.  246;  Powell's  Evidence,  4th 

Com.  V.   Hutchinson,   10   Mass.   225  ;  ed.  29. 

Com.   V.  Hill,  .14  Mass.  207;  Jackson         «  R.  v.  Perkins,  2  Mood.  C.  C.  135; 

V.  Gridley,   18  Johns.    98;  People  v.  Stater.  Whittier,  21  Me.  341;  Com. 

McGee,  1  Denio,  19  ;    Com.  r.  Carey,  v.  Hutchinson,  10  Mass.  225;  Com.  v. 

2  Brewst.  404;  Draper  v.  Draper,  68  Mullins,  2  Allen,  295;  Com.  v.  Lattin, 

111.  17;    Blackwell  v.    State,  11  Ind.  29    Conn.  389;    Den  v.  Vancleve,  2 

368 


CHAP.  VIII.] 


WITNESSES :   DEFECT   IN   PERCEPTION. 


[§  401. 


of  the  ruling  of  the  court  examining  such  a  witness.^  When  a 
child  is  incompetent  simply  for  want  of  instruction  as  to  the 
nature  of  an  oath,  the  practice  has  been  to  postpone  the  case 
so  that  the  child  might  be  intermediately  properly  instructed.^ 
When,  however,  "  the  infirmity,"  to  use  the  language  of  Pol- 
lock, C.  B.,  "  arises  from  no  neglect,  but  from  the  child  being 
too  young  to  have  been  taught,  I  doubt  whether  the  loss  in 
point  of  memory  would  not  more  than  counteract  the  gain  in 
point  of  religious  instruction."  ^  A  temporary  suspension,  how- 
ever, to  enable  a  child  to  recover  from  agitation,  is  not  merely 
unobjectionable  but  proper,^  The  preliminary  examination  of 
the  witness  must  be  public,  not  private.^ 

§  401.    Deficiency  in   perception,  to  operate  as  an  exclusion, 
must  go  to  the  capacity  to  perceive  the  phenomena  in   „  ^  . 

o  r         J  r  X  Deficiencj 

dispute.  A  blind  man,  however,  may  be  called  to  in  percip- 
identify  another  person,  the  senses  of  hearing  and  of  ers  if  total 
touch  being  often  made  more  acute  by  the  loss  of  sight  5 


excludes. 


South.  (N.J.)  589;  Simson  v.  State, 
31  Ind.  90;  Com.  v.  Le  Blanc,  3  Bre- 
vard, 339;  Peterson  ?;.  State,  47  Ga. 
524. 

1  Anonymous,  2  Pen.  (N.  J.)  930; 
Peterson  v.  State,  47  Ga.  524. 

*  See  note  to  R.  v.  Wliite,  1  Leach, 
430. 

8  R.  V.  Nicholas,  2  C.  &K.  246.  See 
remarks  as  to  credibility  of  infants  in 
Whart.  Cr.  Law,  7th  ed.  §  756, 

*  "  The  course  pursued  on  the  occa- 
sion was  eminently  proper.  There  is 
a  practice  sanctioned  by  time-honored 
precedent,  under  which,  when  a  child 
is  found  too  young  to  testify  with  a 
proper  sense  of  responsibility,  the  trial 
may  be  postponed  until  the  witness 
shall  have  been  suitably  instructed. 
This,  however,  has  been  criticised,  as 
like  '  preparing  or  getting  up  a  wit- 
ness for  a  particular  purj)Of;e.'  In 
the  present  case,  even  that  objection 
disappears.  While  the  child  was  so 
laboring  under  nervous  agitation  from 
the  novelty  of  the  surroundings,  as  to 
give  unintelligible  or  absurd  answers. 


she  was  not  permitted  to  testify.  The 
court  merely  waited  for  a  natural  re- 
covery of  mental  equilibrium,  which 
should  permit  the  true  capabilities  of 
the  witness  to  appear.  No  sign  was 
visible  then  in  her  examination,  that 
she  was  incapable,  either  of  receiving 
just  impressions  of  the  facts  about 
which  she  was  to  testify,  or  of  relat- 
ing them  truly.  We  can  find  no  er- 
ror in  the  record."  State  v.  Scanlan, 
58  Mo.  206,  Lewis,  J. 

^  In  a  trial  for  rape' in  Indiana,  the 
prosecuting  witness  was  a  child  only 
six  years  old  at  the  time  of  the  trial, 
which  was  sixteen  months  after  the 
alleged  ofl'ence.  The  witness  being 
excepted  to,  she  was  examined  by  the 
court,  who,  not  being  satisfied,  ap- 
pointed two  gentlemen,  who  retired 
with  the  child  to  a  private  room,  and 
after  some  time  reiwrted  to  the  court 
that  "  in  their  opinion  her  testimony 
ought  to  be  heard,  but  received  with 
great  allowance."  It  was  held  tliat 
this  reference  was  irregular,  autl  tliat 
the  court  ought  to  have  acted  on  ita 

359 


§  402.]  THE   LAW   OF   EVIDENCE.  [l500K  II. 

and  even  if  this  were  not  so,  identification  of  voice  and  accent  is 
always  an  incident  entitled  to  weight.  Loss  of  the  applicatory 
sense,  after  the  period  of  observation,  does  not  affect  the  admis- 
sibility of  testimony.  Hence,  a  blind  man  is  competent  to  testify 
to  what  he  saw  prior  to  his  blindness  ;  a  deaf  man  to  what  he 
heard  prior  to  his  deafness.^  But  generally  a  person  incapable 
of  perception  is  incapable  of  testifying.  If  the  incapacity  of 
perception  is  total,  —  e.  g.  idiocy,  —  then  the  incapacity  for  giv- 
ing evidence  is  total.^  Where,  however,  the  incapacity  of  per- 
ception is  partial,  the  incapacity  to  testify  cannot  be  extended 
beyond  the  limits  of  such  incapacity  to  perceive.  Thus  a  blind 
man  can  testify  as  to  what  he  has  heard,  and  a  deaf  man  as  to 
what  he  has  seen.^  Whether  a  person  drunk,  or  asleep,  or 
etherized  at  the  time  of  the  event,  is  competent,  has  been  else- 
where discussed.*  Stupefaction,  no  matter  from  what  cause,  may 
be  always  shown  to  affect  credibility.^ 

§  402.  In  respect  to  persons  of  deranged  intellects  interesting 
^  questions  arise  in  this  relation.     Formerly  it  was  held 

Insane  ■"■  _  -^  _ 

persons        that  luuatics,  as  they  were  called,  were  to  be  universally 

subjected  i     i     i    p  i  •  mi  • 

to  same        excluded  from   the  witness   box.      ihis  sweeping  rule, 
however,  has   receded   before   the   conviction   that   as 
there  can  be  neither  perfect  sanity  nor  perfect  insanity,  so  no 
witness  is  to  be  absolutely  excluded  because  he  is  insane.^ 

own    judgment,    at   a   public    exami-  the  testimony   of  women  as  to  wliat 

nation  in   the  defendant's   presence,  took  place  when  they  were  etherized. 

Simson  v.  State,  31  Ind.  90;  State  v.  But  these  convictions  are  open  to  grave 

Morea,  2  Ala.  275.  criticism.     Ibid. 

1  Weiske,  Rechtslexicon,  XV.  253;  ^  fjartford  v.  Palmer,  16  Johns. 
Schneider,  Lehre  der  Beweis,  §  112.  143;  Sisson  v.  Conger,  1  Thomp.  &  C. 
Infra,  §  405.  564 ;    Tuttle  v.  Kussell,  2  Day,  201  ; 

2  Coleman  v.  Com.  25  Grat.  865.  Fleming  v.  State,  5  Humph.  564. 

8  Harrod  v.  Harrod,  1  Kay  &  J.  9;         «  1  Whart.  &  St.  Med.  Jur.  §  342  ; 

Morris  v.  Leonard,  3  C.  &  P.  127;  R.  2  Heard's  Lead.  Cas.  20;  R.  v.  Hill,  5 

V.Powell,  1  Leach,  110;  R.  v.  Travers,  Cox,  C.   C.  259  ;  S.  C.  2  Den.  C.  C. 

2  Str.  700;  R.  v.  Boston,  1  Leach,  408;  254  ;  5  Eng.  L.  &  E.  547  ;  Fennell  v. 

R.  V.  Wade,  1  Mood.  C.  C.  86;  Com.  Tait,  1    C,  M.   &   R.   584  ;    Spitte 

V.  Hill,  14  Mass.  207;  State  v.  De  Wolf,  v.  Walton,  L.  R.  11  Eq.  420 ;  Com.  v. 

8  Conn.  93.  Reynolds,  cited  10  Allen,   64  ;  Ken- 

4  1  Whart.  &  St.  Med.  Jur.  §§  245,  dall  v.  May,  10  Allen,  59;  Holcomb 

789;  Whart.   Cr.  Law,  7th  ed.   §  753.  v.  Holcomb,   28   Conn.    177;   Living- 

In  Beale's  case  (2  Whart.  &  St.  Med.  ston  v.  Kiersted,  10  Johns.  362;  Cole- 

Jur.  §  266),  and   Green's  case   (Ibid,  man   v.  Com.  25  Grat.  865;  Campbell 

§  267),  convictions  were  sustained  on  v.  State,  23  Ala.  44. 
360 


CHAP.  VIII. J  WITNESSES  :    CAPACITY    IS   FOR   COURT. 


[§  403. 


§  403.  If  the  witness  appears,  on  examination  by  tlie  judge,  or 
by  evidence    aliunde^  to  have  been  incapable,  at  the    witness 
time  of  the  occurrences  which  he  is  called  to  relate,  of   ex^a^H^l^ed 
perceiving,  or  to  be  incapable,  at  the  time  of  the  trial,   ^y  i^'^o^- 


As  to  witness  imbecile  from  old  age, 
see  McCutcheon  v.  Pigue,  4  Heisk. 
563. 

As  to  intoxicated  witnesses,  see  in- 
fra, §  418. 

In  R.  V.  Hill,  supra,  a  lunatic  pa- 
tient, who  had  been  in  confinement  in 
a  lunatic  asylum,  and  who  labored  un- 
der the  delusion,  both  at  the  time  of 
the  transaction  and  of  the  trial,  that 
he  was  possessed  by  20,000  spirits,  but 
whom  the  medical  witness  believed  to 
be  capable  of  giving  an  account  of 
any  transaction  that  happened  before 
his  eyes,  and  who  appeared  to  under- 
stand the  obligation  of  an  oath,  and 
to  believe  in  future  rewards  and  pun- 
ishments, was  called  as  a  witness  on 
a  trial  for  manslaughter ;  it  was  held 
that  his  testimony  was  properly  re- 
ceived in  evidence  ;  and  that  where 
a  person  under  an  insane  delusion  is 
called  as  a  witness,  it  is  for  the  judge, 
at  the  time,  to  say  whether  he  is  com- 
petent to  be  a  witness,  and  it  is  for 
the  jury  to  judge  of  the  credit  that 
is  to  be  given  to  his  testimony.  If 
upon  his  examination  upyn  the  voir 
dire,  he  exhibits  a  knowledge  of  the 
religious  nature  of  an  oath,  it  is  a 
ground  of  his  admission.  If  the  judge 
has  admitted  a  witness  to  give  evi- 
dence, but  upon  proof  of  subsequent 
facts  affecting  the  capacity  of  the  wit- 
ness, and  of  observations  of  his  subse- 
quent demeanor,  the  judge  changes 
his  opinion  as  to  his  competency,  the 
judge  may  stop  the  examination  of 
the  witness,  strike  his  evidence  out  of 
the  notes,  and  direct  the  jury  to  con- 
sider the  case  exclusively  with  refer- 
ence to  the  evidence  of  the  other  wit- 


nesses. R.  V.  Whitehead,  1  L.  R.  C.  C. 
33;  35L.J.  M.  C.  186;   UW.  R.C77. 

Dr.  Ordronaux,  commissioner  in  the 
case  of  State  v.  N.  Y.  Hos])ital,  where 
the  question  was  the  credibility  of  the 
testimony  of  an  insane  witness,  com- 
ments as  follows  on  the  topic  in  the 
text  :  — 

"  Courts  have  always  looked  with 
distrust  upon  the  testimony  of  the  in- 
sane, because  of  its  generally  mislead- 
ing character.  Nor  Avill  this  appear 
surprising  when  we  recall  the  disturb- 
ing influences,  produced  by  insanity, 
upon  the  moral  as  well  as  the  mental 
faculties.  From  the  earliest  of  our 
decisions,  touching  the  competency  of 
such  evidence  (Livingston  v.  Kiersted, 
10  Johns.  362,  A.  d.  1813;  Hartford 
V.  Palmer,  16  Ibid.  143,  A.  D.  1819), 
down  to  the  present  day,  this  form  of 
proof  has  never  been  considered  prima 
facie  wherever  any  other  relating  to 
the  same  series  of  facts  could  be  ob- 
tained. The  reasons  for  this  are  aptly 
set  forth  in  the  case  of  Holcomb  v. 
Holcomb,  28  Conn.  181,  A.  d.  1859, 
where  the  court,  commenting  upon  the 
value  of  such  testimony,  said:  — 

"  '  The  inlets  to  the  understanding 
may  be  perfect,  so  far  as  any  luunan 
eye  can  discern;  the  moral  (jualilies 
may  all  be  healthy  and  active  ;  the 
conscience  may  be  sensitive  and  vig- 
ilant, and  the  memory  may  be  able  to 
perform  its  oflice  faithfully,  and  yet, 
under  the  influence  of  morbiil  delu- 
sions, reason  becomes  dethroned,  false 
impressions  from  surrounding  objects 
are  received,  and  the  mind  becomes 
an  unsafe  <lepository  of  facts 

"  'The  force  of  all  hunum  testimony 

301 


403.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


of  relating,  then  he  is  to  be  ruled  out.^     But  to  justify  such  ex- 


depends  as  much  upon  the  ability  of 
the  witness  to  observe  the  facts  cor- 
rectly, as  upon  his  disposition  to  de- 
scribe them  honestly  ;  and  if  the  mind 
of  the  witness  is  in  such  a  condition 
that  it  cannot  accurately  observe  pass- 
ing events,  and  if  erroneous  impres- 
sions are  thereby  made  upon  the  tab- 
let of  the  memory,  his  story  will  make 
but  a  feeble  impression  upon  the  hear- 
er, though  it  be  told  with  the  greatest 
apparent  sincerity.'  " 

After  noticing  Hill's  case,  above 
cited,  Dr.  Ordronaux  proceeds  :  — 

"  Except  in  the  case  above  cited,  I 
cannot  find  a  single  instance  where  a 
lunatic,  not  in  a  lucid  interval,  was 
admitted  to  testify  before  a  court.  In 
the  only  instance  which  approximates 
to  it,  namely,  in  3  Dowl.  Pr.  Cas. 
161,  a  party  applied  for  a  habeas  cor- 
pus to  bring  up  a  person  who  was  con- 
fined in  a  lunatic  asylum,  for  the  pur- 
pose of  producing  him  as  a  witness. 
The  affidavit  stated  that  he  was  ?'a- 
tional.  The  court  held  that  the  writ 
could  be  granted  if  the  party  was  in 
a  fit  state  to  be  removed,  and  was  not 
a  dangerous  lunatic.  Both  these  cases, 
however,  go  to  the  extent,  only,  of 
showing  that  where  no  better  testi- 
mony than  that  of  a  lunatic  exists,  it 
is  competent  to  offer  him  as  a  wit- 
ness, leaving  the  court  to  decide  upon 
his  admissibility.  But  the  common 
law  doctrine  remains,  nevertheless, 
unchanged,  wherever  it  can  be  applied 
without  hindrance  to  justice. 

"  The  reasons  for  this  exclusion  are 
well  stated  by  Mr.  Shelford,  who,  in 
his  Law  of  Lunatics  and  Idiots,  p.  621, 
says,  in  confirmation  of  this  doctrine, 
that '  the  ground  of  excluding  the  evi- 


dence of  insane  persons,  in  courts  of 
justice,  requires  little  or  no  illustra- 
tion, for  it  is  obvious  that  they  are 
altogether  unfit  to  communicate  such 
information  as  can  be  relied  upon,  or 
will  afford  a  motive  to  assent  in  any 
case,  and  much  caution  is  required  in 
admitting  persons  who  are  sometimes 
insane  to  give  testimony  in  a  court  of 
justice,  even  during  their  lucid  inter- 
vals. When,  indeed,  the  intermission 
of  the  disease  has  been  long,  and  the 
facts  concerning  which  the  evidence  is 
required  are  of  recent  occurrence,  and 
no  access  of  the  disease  has  followed, 
evidence  of  the  facts  to  which  such 
a  witness  deposes  ought  to  be  re- 
ceived, more  especially  if  other  wit- 
nesses to  the  same  point  cannot  be 
obtained ;  but  such  evidence  is  liable 
to  great  suspicion,  and  will  not,  per- 
haps, be  entitled  to  receive  full  credit, 
except  in  conjunction  with,  and  as 
corroborative  of  other  proof.' 

"  It  is  upon  these  two  last  mentioned 
principles,  namely,  that  no  other  wit- 
nesses to  the  same  point  could  be  ob- 
tained, and  second,  that  it  was  cor- 
roborative of  other  proof,  that  the 
insane  witness,  Donnelly,  was  allowed 
to  testify  in  Regina  v.  Hill,  and  it  is 
because  of  these  same  existing  condi- 
tions in  Mr^  Norton's  case  that  I  have 
felt  it  proper  to  admit  her  testimony. 
Nevertheless,  since  a  period  of  insan- 
ity has  always  been  considered  at  law 
as  one  of  civil  death,  from  which  no 
primd/acie  testimony  could  be  elicited, 
great  doubt  must  necessarily  attach 
itself  to  the  evidence  of  persons  who, 
having  nominally  recovered  from  a 
state  of  insanity,  seek  to  testify  to 
facts  occurring  during  its  existence." 


1  R.  V.  Hill,  5  Cox  C.  C.  259;  S.  C. 
2  Den.  C.  C.  254;  Powell's  Ev.  4th 
ed.   28 ;    Holcomb    v.    Holcomb,    28 
362 


Conn.  177;  Coleman  i>.  Com.  25  Grat. 
865;  Livingston  v.  Kiersted,  10  Johns. 
R.  362.     Supra,  §  391. 


CHAP.  VIII.]  WITNESSES  :    MENTAL   INCOMPETENCY. 


[§  403. 


elusion  mere  streaks  of  insanity  are  not  sufficient.  A  man  may 
have  many  delusions  and  yet  be  capable  of  narrating  facts  truly  ; 
and  in  any  view,  the  existence  of  such  delusions  on  his  part,  at 
the  time  of  trial,  goes  to  his  credit  and  not  to  his  competency.^ 
Evidence,  also,  of  mental  disturbance,  at  the  time  of  the  events 
narrated,  can  be  received  to  affect  credibility .^  But  the  judge, 
on  being  convinced  of  the  incompetency  of  the  witness,  at  the 
trial,  may  at  any  period  stop  the  examination,  and  direct  the  jury 
to  disregard  the  witness's  testimony.^  Tliis  question,  as  we  have 
seen,  arises  when  witnesses  testify  as  to  what  happened  to  them 
when  unconscious,  or  when  they  are  more  or  less  intoxicated  at 
at  the  trial.'^ 


....  "  For  no  presumptions  of  ab- 
solute recovery  from'  a  state  of  ac- 
knowledged insanity  arise  in  law  from 
the  lapse  of  time  alone.  Something 
more  than  this  is  needed,  and  the  bui'- 
den  of  proof  is  on  him  wlio  alleges  it. 
Attorney  Gen.  v.  Parnther,  3  Bro.  Ch. 
Ca.  443;  Peaslee  v.  Robbins,  3  Mete. 
164;  Hix  V.  Whittemore,  4  Met.  545; 
Shelford  on  Lunatics,  275;  1  Green- 
leaf  on  Evidence,  §  42. 

"It  lias  been,  therefore,  the  invari- 
able practice  of  courts  to  make  this 
inquiry  as  a  condition  precedent  to 
the  admissibility  of  the  witness.  It 
was  so  done  in  Regina  v.  Hill,  above 
cited;  it  was  reaflirmed  in  Spittle  v. 
Walton,  40  L.  J.  Chancery,  368  ;  and 
again  in  one  of  our  own  courts,  in 
Campbell  r.  The  State,  23  Alab.  44, 
where  Chief  Justice  Chilton,  speaking 
to  the  point,  said,  that  '  the  question 
was,  whether  the  witness,  conceding 
him  to  have  labored  under  mental  de- 
lusion at  a  previous  ])eriod,  was,  at  the 
time  of  the  trial,  of  sound  mind.'  In 
Mrs.  Norton's  case,  it  seemed  to  me 
the  more  equitable  way  to  allow  her 
to  testify  in  her  own  behalf,  without 
previous  examination,  leaving  that  tes- 
timony to  stand  or  to  fall,  as  a  test  of 
her  mental  competency,  according  as  it 
squared  with  itself,  and  was  corrobo- 


rative of  facts  otherwise  circumstan- 
tially established."  Pamphlet  Report, 
N.  Y.  1876. 

1  R.  r.  Hill,  2  Den.  C.  C.  254 ;  S. 
C.  5  Cox  C.  C.  259  ;  R.  v.  Whitehead, 
L.  R.  1  C.  C.  R.  33 ;  Spittle  v.  Wal- 
ton, L.  R.  1 1  Eq.  420. 

2  Fairchild  v.  Bascomb,  35  Vt.  398; 
Holcomb  V.  Holcorab,  28  Conn.  177; 
Rivara  v.  Ghio,  3  E.  D.  Smith,  264. 
See  Bell  v.  Rinner,  16  Oh.  St.  45.  In 
Vermont  the  right  to  examine  on 
voir  (lire  is  disputed.  Robinson  i>. 
Dana,  16  Vt.  474. 

8  R.  V.  Whitehead,  L.  R.  1  C.  C. 
33. 

*  See  2  Whart.  &  St.  Med.  Jur.  §§ 
245-266.     Infra,  407. 

A  maniac  as  said  by  commentators 
on  the  Roman  law,  is  an  incompetent 
witness  as  to  the  transaction  to  which 
his  mania  extends;  but  this  cannot  be 
sustained,  for  the  determination  of  in- 
cajjacity  can  only  be  comj)lrted  Ity  the 
examination  of  the  witness,  and  his 
supposed  mental  derangenu-nt  goes  to 
the  value,  not  the  competency,  of  his 
testimony.  The  passage  relied  on  from 
the  Institutes  is,  "  Furiosus  nullum 
negotium  gcrere  potest,  quia  non  in- 
tellegit  (piid  agit."  §  H,  L.  iii.  18. 
But  this  is  not  only  confined  to  mat- 
ters of  business,  but  assumes  uncon- 

363 


§  403.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


An  inquisition  of  lunacy  may  be  primd  facie  evidence  of  in- 
competency,! but  does  not  exclude  if  upon  hearing  the  court 
find  that  the  witness  understands  the  nature  of  an  oath,  and  the 
facts  of  which  lie  speaks.^ 


scioiisness  on  the  part-  of  the  "  furio- 
siis  "  of  what  he  is  doing. 

^  Iloyt  V.  Adee,  3  Lansing,  173. 

2  The  point  in  the  text  is  well  dis- 
cussed in  the  following  opinion:  "  The 
first  question  that  arises  in  the  case 
was  originally  made  at  the  hearing 
before  the  auditor.  The  plaintiff  of- 
fered himself  as  a  witness  to  prove 
his  account.  The  defendant's  coun- 
sel objected  that  he  was  not  a  com- 
petent witness  under  the  provisions  of 
Gen.  Sts.  c.  131,  §  14,  because  the 
defendant  was  insane.  The  auditor 
overruled  the  objection,  because  upon 
due  hearing  he  found  as  a  fact  that 
the  mental  condition  of  the  defendant 
was  not  such  as  would  incapacitate 
him  from  being  a  witness.  The  de- 
fendant's counsel  contends  that  this 
ruling  was  erroneous ;  that  the  ap- 
pointment of  a  guardian  by  the  pro- 
bate court,  and  the  leave  granted  by 
the  superior  court  to  the  guardian  to 
appear  and  defend  this  action,  were 
conclusive  evidence  of  the  insanity  of 
the  defendant,  and  that  his  mere  in- 
sanity excludes  the  plaintiff  from  tes- 
tifying. 

"  There  can  be  no  doubt  that  where 
one  party  is  insane  to  such  a  degree 
as  to  exclude  him  from  being  a  wit- 
ness, the  statute  does  not  intend  to 
admit  the  other  party.  But  it  is  not 
every  degree  of  insanity  that  has  this 
effect. 

"  This  question  was  thoroughly  con- 
sidered in  Regina  v.  Hill,  15  Jurist, 
471,  the  same  case  being  also  reported 
in  several  other  books.  On  the  trial 
of  an  indictment  for  manslaughter, 
Coleridge,  J.,  admitted  a  witness  to 
testify  who  was   brought   into   court 

364 


from  a  lunatic  hospital,  and  who  la- 
bored under  the  delusion  that  he  was 
possessed  of  twenty  thousand  spirits. 
In  the  court  of  criminal  appeal  this 
ruling  was  affirmed  by  Lord  Campbell, 
C.  J.,  Piatt,  Talfourd,  and  Coleridge, 
JJ.  The  rule  as  they  state  it  is,  that 
it  is  for  the  judge  to  satisfy  himself 
whether  the  witness  understands  the 
nature  of  the  oath,  and  is  capable 
of  testifying.  He  then  decides  upon 
the  competency  of  the  witness,  and  if 
he  admits  him,  it  is  left  to  the  jury 
to  estimate  the  value  of  his  testi- 
mony. 

"  This  is  the  only  rational  and  just 
rule  that  can  be  adopted.  Insanity 
exists  in  various  degrees.  Modern 
investigations  have  shown  that  it  ex- 
ists much  more  extensively  than  was 
formerly  supposed,  and  that  persons 
who  are  affected  to  such  an  extent 
that  it  is  expedient  to  place  them  in 
insane  hospitals  or  under  guardianship 
often  possess  sufficient  knowledge  of 
the  nature  of  an  oath  and  of  events 
that  took  place  in  their  presence  to 
make  them  useful  and  trustworthy  as 
witnesses.  A  rigid  rule  that  would 
exclude  the  testimony  of  all  such  per- 
sons as  untrustworthy  witnesses  would 
not  be  conformable  to  facts,  and  there- 
fore would  not  be  founded  in  good 
sense.  Nor  would  such  a  rule  pro- 
mote justice.  It  would  leave  insane 
persons  needlessly  unprotected  in  hos- 
pitals and  elsewhere,  and  would  de- 
jH'ive  the  public  and  individuals  of 
their  testimony  in  cases  where  it  might 
be  important  and  valuable. 

"  In  commenting  upon  such  a  rule, 
Talfourd,  J.,  remarked  that  Luther 
supposed  he  had  conferences  with  the 


CHAP.  VIII.] 


WITNESSES  :   CREDIBILITY, 


[§  404. 


Credibility 
depends 
not  only  on 
veracitv 


§  404.  "  The  credibility  of  a  witness  to  a  fact  seems  to  depend 
mainly  on  the  four  following  conditions :  namely,  1.  That 
the  fact  fell  within  the  range  of  his  senses.  2.  That 
he  observed  or  attended  to  it.^  3.  That  he  possesses 
a  fair  amount  of  intelligence  and  memory .^  4.  That  padty  t^o' 
he  is  free  from  any  sinister  or  misleading  interest :  or  ''•'serve, 
if  not,  that  he  is  a  person  of  veracity.  If  a  person  was  present 
at  any  event,  so  as  to  see  or  hear  it ;  if  he  availed  himself  of 
his  opportunity,  so  as  to  take  note  of  what  passed ;  ^  if  he  has 
sufficient  mental  capacity  to  give  an  accurate  report  of  the 
occurrence  ;  and  if  he  is  not  influenced  by  personal  favor,  or  dis- 
like, or  fear,  or  the  hope  of  gain,  to  misreport  the  fact ;  *  or  if, 
notwithstanding  such  influence,  his  own  conscience  and  moral  or 
religious  principle,  or  the  fear  of  public  opinion,  deters  him 
from  mendacity,  such  a  person  is  a  credible  witness."  ^  Of  the 
dependence  of  credibility  on  the  opportunities  possessed  by  the 
witness  for  observation,  we  may  draw  an  illustration  from  the 
line  of  cases  which  involve  collisions  at  sea.  It  has  been  re- 
marked that  collision  cases  are  peculiarly  distinguished  for  con- 
flict of  testimony  ;  and  this  may  be  partially  explained  by  the 
prejudice  felt  b}^  witnesses  for  their  own  boats.  In  boat  races  a 
conflict  takes  place  as  to  every  question  as  to  which  a  conflict  can 
be  raised  ;  and  the  gravest  as  well  as  the  lightest  yield  to  the 
common  excitement.      The  late   Mr.  John  Sergeant  once  illus- 


devil,  and  Dr.  Johnson  entertained 
delusions  respecting  his  mother.  In 
the  case  of  Commonwealth  v.  Rey- 
nolds, which  was  an  indictment  for 
murder  tried  in  Bristol  in  18G;3,  this 
court  admitted  an  insane  person  to 
testify,  adopting  the  principle  laid 
down  in  llegina  v.  Hill.  In  Leonard 
r.  Leonard,  14  Pick.  280,  it  is  said 
that  an  insane  person  under  guardian- 
ship may  make  a  will,  if  of  suOicient 
capacity.  The  reason  of  allowing  him 
to  testify,  if  he  understands  the  nature 
of  an  oath  and  the  facts  which  he  re- 
lates, is  at  least  as  strong  as  for  al- 
lowing him  to  make  a  will.  The  au- 
ditor, therefore,  decided  correctly  the 
question  of  law  in  respect  to  the  com- 


petency of  an  insane  person  to  tes- 
tify." Chapman,  J.,  Kendall  v.  May, 
10  Allen,  63. 

^  See  People  v.  Bodine,  1  Edm.  Sel. 
Cas.  3G;  Julke  v.  Adam,  1  Redf.  (N. 
y.)  454. 

2  See  Willet  i-.  Fister.  18  Wall.  91 ; 
Evans  v.  Lipscomb,  'M  (Ja.  71. 

8  See  Barrett  v.  Williamson,  4  Mc- 
Lean, 589  ;  Jacksonville  R.  R.  v.  Cald- 
well, 21  111.  75;  Durham  r.  Iloleman, 
30  Ga.  G19;  Hilt  v.  Ru.'^h,  22  Ala. 
5G3. 

*  See  Chicago  R.  11.  v.  Triplett,  38 
III.  482. 

^  Sir  Geo.  Corn.  Lewis,  on  Inthience 
of  Authority,  2d  ed.  1S7:),  p.  l.j. 

365 


§  406.]  THE   LAW   OF   EVIDENCE.  [BOOK  H. 

trated  this  by  relating  a  collision  case  that  was  tried  when  he 
was  a  young  man,  the  two  colliding  ships  being  filled  with  law- 
yers who  were  going  from  Philadelphia  to  Wilmington  to  attend 
court.  Which  was  the  aggressor,  was  the  question  to  be  tried 
in  the  collision  case ;  and  on  this  question  each  lawyer  swore 
with  his  ship.  But  it  is  not  only  by  prejudice  or  passion  that 
such  conflicts  can  be  explained.  The  most  dispassionate  and  the 
most  accurate  of  observers,  so  we  are  told,  when  on  one  moving 
vessel,  fail  in  taking  a  correct  view  of  the  absolute  course  of 
another  vessel.  We  cannot  overcome  the  instinctive  belief  that 
it  is  our  own  vessel  that  is  stationary,  and  that  it  is  the  other 
alone  that  moves.  Hence  admiralty  courts  have  held  that  the 
testimony  of  mere  observers  on  board  a  vessel,  is  to  yield,  in 
cases  involving  the  course  and  deflection  of  the  vessel  to  that  of 
those  who  hold  her  helm  in  their  hands. ^  What  is  true  of  the 
sea,  is  true,  though  in  varying  degrees,  of  the  land.  We  all 
occupy  stand-points  which  make  us,  however  honest,  more  or 
less  incapable  of  perfectly  accurate  observation.  Until  allow- 
ance be  made  for  this  incapacity,  no  testimony  can  be  properly 
weighed. 2 

§  405.  A  witness  may  have  been  capable  of  perceiving  yet  be 
incapable   of   relation.     He   may  have   no   powers   of 

Incapacity  ^  "^  •  i  •  ii-   i 

to  relate       speech,  and  have  no  means  of  expressing  himself  by 

may  affect        .  ■,,  ,  ,  .  •  j.i 

compe-  Signs.  He  may  have  become  insane  since  tne  occur- 
tency.  renccs  he  is  called  upon  to  relate.     If,  however,  such 

incapacity  is  temporary,  the  court  will  in  proper  cases  direct  an 
adjournment  so  that  it  may  be  overcome.^  But  the  application 
must  be  made  before  the  jury  is  sworn.*  And  the  case  must  be 
one  which  promises  a  speedy  restoration.^ 

§  406.  Deaf  and  dumb  persons  were  formerly  regarded  as 
Deaf  and  idiots,  and  therefore  incompetent  to  testify  ;  but  the 
fn"compe°-'^  modern  doctrine  is  that  if  they  are  of  sufiicient  under- 
^^"'^-  standing,  and  know  the  nature  of  an  oath,  they  may 

1  McNally  v.  Meyer,  5  Ben.  239.  «  R.  v.  White,  1  Leach,  430,  n.  a. 

'^  On   this  point  observe  the  com-  Supra,  §§  400,  401. 

ments  on  Lady  Tichborne's  declara-  *  R.    v.  Wade,  1  Moody  C.  C.  86 ; 

tions,  supra,  §  9.     The  same  criticism  R.  v.  Kinloch,  18  How.  State  Trials, 

applies  to  Lady  Vane's  declarations  402. 

in  the  Vane  case,  before  Malins,  V.  ^  Supra,  §  400. 
C,  December,  1876. 

366 


CHAP.  VIII.]  WITNESSES :    INABILITY   TO   RELATE.  [§  408. 

give  evidence  either  by  signs,  or  through  an  interpreter,  or  in 
writing.!  It  has  been  laid  down  that  "  the  presumption  is 
always  in  favor  of  sanity,  and  there  is  no  exception  to  this 
rule  in  the  case  of  a  deaf  and  dumb  person,  but  the  onus  of 
proving  the  unsoundness  of  mind  of  such  a  person  must  rest 
upon  those  who  dispute  the  sanity."  ^ 

§  407.  If  there  are  any  means  by  which  the  witness  may  be 
interpreted,  such  means  will  be  adopted.  A  deaf  mute,  interpreta- 
for  instance,  may  be  permitted  to  express  himself  in  nessVr^"^' 
writing,  if  this  be  the  mode  in  which  he  can  be  better  missibie. 
understood,  or  through  a  sworn  interpreter  by  whom  his  signs 
can  be  interpreted.^  Such  interpretation  is  not  hearsay,'*  nor  is 
it  excluded  by  the  fact  that  the  witness  can  write.^ 

§  408.  One   of   the   advantages  of   cross-examination,  as  we 

shall  have  occasion  to  see  more  fully  hereafter,^  is  that 

it  enables  the  bias  of  a  witness  to  be  disclosed,  and  this   taken  in 

is  peculiarly  important  when  interest  is  no  longer  a   esti"naUng 

ground  for  disqualification.     We   should  at  the  same    accuracy 
®  ^  ...  of  witness. 

time  remember,  however,  that  pecuniary  interest  in  a 
case  is  by  no  means  the  only  influence  by  which  bias  is  produced. 
Relationship,  party  sympathy,  personal  affection,  work  upon 
the  perceptive  powers  of  witnesses  more  subtly  and  more  effect- 
ively, in  the  great  body  of  cases,  than  does  pecuniary  interest ; 
and  it  is  by  no  means  creditable  to  the  English  common  law,  that 
it  regarded  the  less  honorable  influence  as  so  powerful  that  the 
interest  of  a  single  penny  would  incapacitate,  while  it  so  little 
appreciated  the  force  of  the  nobler  affections  that  in  only  one 
case,  that  of  marital  relationship,  did  it  recognize  their  existence.'' 
Now,  however,  that  all  disqualifications  ai-e  removed,  and  that 
proof  of  interest  goes  only  to  credibility,  influences  of  all  kinds 
are    equally  objects    of   consideration,  in    determining   how   far 

1  1  Hale  P.  C.  34;  Rushton's  case,  v.  Steel,  1  Leach,  452  ;  ISIorrison  v. 
1  Leach  C.  C.  408  ;  Morrison  v.  Len-  Lennard,  3  C.  &  P.  127  ;  Com.  v.  Hill, 
nard,  3  Car.  &  P.  127.  See  supra,  14  Mass.  207  ;  State  «;.  De  Wolf,  8 
§  401.  Conn.     93 ;    Snyder    v.    Nations,    5 

2  Per    Lord    Hatherly,  Harrod    v.  Blackf.  295. 
Harrod,  4   K.  &  J.   9;  Powell's  Evi-  *  Supra,  §  174. 

dence,  4th  ed.  28,  and  cases  in  next         ^  State  v.  De  Wolf,  8  Conn.  93. 
section.  "  Infra,  §  527. 

8  R.  V.  Huston,  1   Leach,  408  ;  R.         ''  Sec  infra,  §  419. 

367 


§  408.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


credibility  exists.  Credibility,  therefore,  so  far  as  it  depends 
upon  the  capacity  for  accurate  narration,  is  now  relieved  from 
the  obstructions  produced  by  the  old  rules,  and  is  determin- 
able by  the  ordinary  laws   of  free  logical  criticism.^     The  ques- 


1  Sep,  AViitkins  v.  Causall,  1  E.  D. 
Smith,  65 ;  Chicago  R.  R.  v.  Triplctt, 
38  111.  482  ;  Sullivan  v.  Collins,  18 
Iowa,  228. 

"  The  trustworthiness  (Jides)  of 
testimony  is  settled  by  the  general 
logical  rules  which  govern  the  infer- 
ence from  the  conditioned  to  the  con- 
dition, and,  more  particularly,  the 
construction  ami  verification  of  hy- 
potheses, for  this  is  only  a  special  case 
of  that  more  general  class.  The  fact 
to  be  concluded  is  the  real  prius  of  the 
testimony.  The  content  of  the  testi- 
mony may  have  for  its  ground,  either 
that  the  event  has  happened  and  has 
been  observed  exactly  in  the  same 
way,  or  that  the  observation  has  been 
influenced  by  a  false  apprehension, 
an  untrue  recollection,  preference  of 
some  fancy  to  strict  accuracy,  or  the 
confusion  of  subjective  judgment  with 
objective  fact.  But  the  witness  of  an 
immediate  or  eyewitness  (^testis  prbni- 
tivus,  prozimus,  ocula(us),  who  is  an 
immediate  witness  notoriously  or  ac- 
cording to  the  assured  concurrence  of 
historical  criticism,  is  trustworthy, 
provided  that  he  has  been  able  to 
apprehend  the  fact  strictly  and  truly, 
according  to  his  intellectual  and  moral 
condition,  and  to  represent  it  truly, 
and  has  taken  care  to  do  so.  The 
agreement  of  several  immediate  wit- 
nesses with  each  other  gives  to  their 
assertion  a  very  high  probability,  if  it 
is  proved  that  they  are  independent, 
that  they  have  not  been  deceived 
by  the  same  deception,  nor  have  been 
affected  and  psychologically  influenced 
by  the  same  one-sidedness  in  appre- 
hension and  statement;  for  a  purely 
accidental  agreement  in  an  accidental 

368 


circumstance  has,  according  to  the 
laws  of  the  calculation  of  prol)ability, 
a  very  high  degree  of  probability  in 
all  complicated  relations.  The  trust- 
worthiness of  mediate  witnesses  (testes 
secundarii,  ex  aliis  testibus  pendenles) 
is  determined  partly  by  their  sense 
and  critical  capacity,  partly  and  chiefly 
by  their  relation  to  immediate  wit- 
nesses. It  is  an  essential  problem, 
but  seldom  absolutely  soluble,  to  dis- 
cover the  genealogy  of  testimony.  The 
testimony  of  later  witnesses  is  suspi- 
cious, especially  when  there  is  any- 
thing in  it  to  serve  a  distinct  (poet- 
ical, national,  philosophical,  dogmatic, 
or  practical)  tendency,  and  the  further 
it  stands  from  the  actual  occurrences. 
The  verification  of  the  subjective 
trustworthiness  of  different  witnesses 
is  reciprocally  related  to  the  verifica- 
tion of  the  objective  probability,  which 
what  is  attested  has  in  itself  and  in 
connection  with  undoubted  facts.  Crit- 
icism is  positive  so  far  as  it  has  to  con- 
struct a  complete  picture  of  the  real 
previous  occurrence  by  combining  the 
true  elements  and  excluding  the  false." 
Ueberweg's  Logic,  Lindsay's  trans. 
§140. 

"  The  teacher,  physician,  historian, 
and  judge,  have  daily  occasion  to  ob- 
serve how  little  men  are  accustomed 
to  describe  the  simple  facts,  and  how 
very  much  they  mix  up  in  the  state- 
ment (unconsciously  and  unintention- 
ally) their  own  opinions  and  interests. 
It  is  inconceivably  hard,  I  had  almost 
said  impossible,  to  describe  Avhat  has 
been  seen  or  heard  wholly  and  exactly 
as  it  has  been  seen  and  heard.  We 
often  introduce  our  own  feelings  with- 
out anticipating  it,  and  although  we 


CHAP.  VI[I.]  WITNESSES  :    CREDIBILITY.  [§  409. 

tion  now  is,  not  whether  a  witness  is  to  be  received,  but  how  far 
he  is  to  be  believed.^  Interest  and  party  sympathy  may  be  al- 
ways shown  in  order  to  discredit  a  witness,^  and  the  same  obser- 
vation may  be  made  as  to  near  relationship.^  But  immorality 
cannot  be  introduced  to  affect  credibility  unless  it  be  involved  in 
a  reputation  for  untruth.* 

§  409.  A  witness  spending  a  single  day  in  a  country,  may  be 

examined  as  to  its  climate,  but  his  answer  will  relate  to 

1  11  -11  1  1  •  -'^"'^  ^°  °^ 
what  may  be  only  exceptional  phenomena  ;  and  his  tes-   want  of  op- 

timony  will  at  the  best  be  entitled  to  but  little  weight  of  observa- 
compared  with  that  of  an  observer  for  years.  A  phy-  *°°' 
sician  called  upon  once  to  visit  a  patient  can  speak  as  to  this 
interview,  but  cannot  speak  as  to  what  he  had  no  opportunities 
to  observe.^  Farmers  will  be  entitled  to  credit  in  agricultural 
matters,  as  to  which  other  persons  are  of  no  authority  ;  ^  and 
so,  mutatis  mutandis,  as  to  architects.'^  Opportunities  of  obser- 
vation, though  not  essential  to  competency,  are  of  much  impor- 
tance, therefore,  in  determining  credibility,  for  a  witness  is  en- 
titled to  little  credit  when  he  narrates  that  which  he  did  not  wit- 
ness.^ In  questions  of  identity  this  caution  is  to  be  pecidiarly 
observed.^ 

have  the  strongest  and  purest  love  of  ^  See  Barrett  v.  Williamson,  4  Mc- 

truth.     We  see  in  the  descriptions  not  Lean,  589;    Durham   v.   Iloleman,  30 

the  things  themselves,  but  only  the  im-  Ga.  619;   Hitt  v.  Rush,  22  Ala.  563. 

pressions  which  they  have  made  upon  "  Jacksonville    R.    R.    i'.  Caldwell, 

the  soul  of  our  author,  and  we  know  21  111.  75. 

that  the   account  of  the   imj)ression  '  Tucker  v.  Williams,  2  Hilt.  (N. 

never  fully  corresponds  to  the  things.  Y.)  562.     See  infra,  §  439. 

It   is   the   business   of   the   historical  ^  See  fully  on  this  point,  §§  71,  72. 

critic  to  infer  back  from  the  narrative  '  "  Now,  the  question  being  one  of 

to  the  first  form  of  the  impression,  and  identity,  a  good  deal   has    been    said 

from  this  to  the  actual  fact,  to  remove  about  the  doubtful  nature  of   the  in- 

the  additions  and  changes  due  to  sub-  quiry,  and  of  the  only   proof  which, 

jective  influence,  and  to  restore  the  generally  speaking,  can  be  jiroduced 

objective  occurrence."     Ibid.  of  identity;  and  I  quite  agree  that  it 

^  See  infra,  §  566.  is  one  of  the  most  dilHcult  questions 

2  Infra,  §§  544,  545.  with  which  courts  of  justice  and  juries 
8  Infra,  §566;  Gangwere's  Est.  14  have  to  deal,  and   that  it  is   one  of 

Penn.    St.  417;  Tardif  v.  Baudoin,  9  those  questions  upon  which  they  arc 

La.  An.  127.  occasionally  liable  to  go  wrong.     But 

*  Infra,  §563;  State   v.  Randolph,  ordinary  cases   of   identity    .are   very 

24  Conn.  3G3;  Smithwick  i>.  Evans,  24  dilTertnt   indeed     from    the    present. 

Ga.  4G1.  Frequently  a  man  is  sworn  to  who  has 

VOL.  I.            24  3G9 


§  410.] 


THE   LAW   OF   EVIDENCE. 


[book  ii. 


§  410.  Nor  should  the  capriciousness  of  memory  be  left  out  of 
And  so  as  accouiit  in  adjusting  credibility.  Old  persons  recollect 
taintvoV  ^^^^  impressious,  of  their  childhood  far  more  vividly 
memory.      than  they  do   those  of   their  maturer  years.     Falstaff, 


been  seen  only  for  a  moment,  or  for  a 
very  short  space  of  time.  A  man  stops 
you  on  the  road,  puts  a  pistol  to  your 
head,  and  robs  you  of  your  watch  or 
your  purse ;  a  man  seizes  you  by  the 
throat,  and  while  you  are  half  stran- 
gled, his  confederate  rifles  your  pock- 
ets ;  a  burglar  invades  your  house  by 
night,  and  you  have  only  a  rapid 
glance  to  enable  you  to  know  his 
features.  In  all  these  cases  the  op- 
portunity of  observing  is  so  brief  that 
mistake  is  possible,  and  yet  the  lives 
and  safety  of  people  would  not  be 
secure  unless  we  acted  on  the  recollec- 
tion of  features  so  acquired  and  so 
retained ;  and  it  is  done  every  day. 
Thei-e  are  instances,  indeed,  in  which 
the  supposed  recollection  of  the  feat- 
ures of  a  person  accused  has  proved 
faulty.  ]  have  known  such  instances 
myself.  I  remember  to  have  been 
present  years  ago  at  a  trial,  which  I 
never  shall  forget,  on  the  western  cir- 
cuit, in  which  two  men  were  tried  for 
murder.  They  were  both  convicted, 
one  upon  evidence  of  identity  given 
by  numerous  persons,  who  all  swore 
to  the  man.  He  was  convicted,  and 
if  execution  had  followed  upon  con- 
viction with  the  rapidity  it  did  at  an 
earlier  time,  the  man  would  have  been 
executed.  It  was  proved  afterwards, 
beyond  all  possibilitj'  of  a  doubt,  that 
those  who  had  sworn  to  the  identity 
of  the  man  were  mistaken.  He  had 
been  taken  up  for  picking  pockets  on 
the  day  the  murder  was  committed, 
hundreds  of  miles  away  from  the  place; 
he  was  in  confinement  at  the  time  un- 
der the  latter  charge ;  there  was  not 
the  slightest  doubt  in  the  world  about 
it.  The  man  was,  of  course,  reprieved. 

370 


I  tried  a  case  not  very  long  ago  at 
Hartford,  where  a  man  was  charged 
with  night  poaching,  and  with  a  most 
serious  assault  upon  a  keeper,  —  the 
keeper  having  been  most  cruelly  used. 
The  keeper  was  a  most  respectable 
man,  head-keeper  of  a  nobleman  in 
the  country.  Nobody  doubted  his  per- 
fect veracity  and  intention  to  speak 
the  truth,  and  he  swore  most  positively 
to  the  man.  I  had  not  the  slightest 
doubt  of  his  testimony.  The  jury  con- 
victed the  prisoner.  It  turned  out 
afterwards  that  we  were  all  mistaken. 
It  was  shown  satisfactorily  that  he 
had  been  mistaken  for  another  man. 
Therefore  I  quite  agree  with  what 
Avas  said  by  the  learned  counsel  for 
the  defendant,  that  in  ordinary  cases 
identity  is  a  very  difficult  point ;  and 
here  it  is  the  question  at  issue  in  this 
case.  But  in  the  cases  I  am  speaking 
of,  you  have  merely  the  evidence  of 
persons  who  have  had  a  short  and 
casual  opportunity  of  becoming  ac- 
quainted with  the  appearance  of  the 
individual.  Here  we  have  a  much 
wider  range  of  proof ;  but  at  the  same 
time  the  inquiry  is  one  which  has  its 
own  peculiar  difficulties;  for  whereas 
in  the  cases  to  which  I  have  been  re- 
ferring the  recollection  is  called  forth 
in  a  court  of  justice  speedily  after  the 
event,  here  we  are  dealing  with  the 
identity  of  a  man  alleged  to  have  been 
dead  ever  since  1854,  —  twenty  years 
ago,  —  and  the  asserted  identity  of  an- 
other man  who  for  a  great  number  of 
years  has  disappeared  from  the  knowl- 
edge of  all  those  who  knew  the  un- 
doubted man,  from  the  year  1854,  at 
all  events,  until  the  year  1866  or  1867. 
And  if  in  ordinary  cases  evidence  of 


CHAP.  VIII.]  WITNESSES  :    DEFECT    OF   MEMORY. 


[§  410. 


on  his  death-bed,  "  babbled  of  green  fields,"  though  since  boy- 
hood his  life  had  been  spent  in  the  city.  Chief  Justice  Marshall, 
when  dying,  —  to  pass  from  one  of  the  weakest  to  one  of  the 
strongest  of  characters,  —  repeated  a  child's  hymn,  recalling  the 
scenes  of  his  infancy,  — 

Coelumque 
Adspicit,  et  dulces  moriens  reminisoitur  Argos. 

This  experience  is  almost  universal ;  yet  we  must  remember  that 
the  tenacity  of  such  impressions  is  more  remarkable  than  their 
accuracy.^  The  reason  why  the  memory  is  so  retentive  of  early 
events  is,  that  when  these  events  occurred  the  memory  was  plas- 
tic ;  but  the  fact  that  the  inemory  is  plastic  by  no  means  pre- 
supposes its  exactness.  Its  very  plasticity  makes  it  open  to 
disturbing  contemporaneous  influences,  just  as  the  least  palpi- 
tation in  the  air  will  disturb  the  features  of  a  cast  when  in 
the  first  processes  of  hardening.  The  influence  of  association, 
also,  has  a  great  deal  to  do  with  even  our  riper  memory.     We 


identity  is  calculated  to  mislead  us  or 
embarrass  us,  how  much  more  must  it 
do  so  in  a  case  like  the  present,  where 
you  have  a  host  of  witnesses  on  the 
one  side  confronted  with  an  equal 
host  on  the  other;  where,  with  the  ex- 
ception of  the  mother,  you  have  an 
entire  family, —  I  say  an  entire  family, 
for  I  attach  no  value  to  the  opinion  of 
Mr.  Biddulph, — a  body  of  persons 
who  were  as  familiar  with  Roger  Ticdi- 
borne,  whose  existence  is  in  dispute, 
as  it  is  possible  for  people  to  be,  and 
who  deny  the  identity  of  the  defend- 
ant; and,  on  the  other  hand,  the  mother 
of  the  undoubted  Roger  Tichborne 
asserting  that  he  is  her  son;  a  host  of 
witnesses  coming  forward  to  say  that 
he  is  not  the  man,  and  ecjual,  or  per- 
haps a  greater  number  coining  forward 
to  say  that  he  is,  while  the  matter  is 
still  further  complicated  by  this  ex- 
traordinary circumstance,  that  while 
the  defendant  says,  *  I  am  Roger  Tich- 
borne,' and  produces  numerous  wit- 
nesses to  say  that  he  is,  and   another 


vast  array  of  witnesses  come  forward 
to  say  he  is  not,  the  identity  of  the 
man,  who  thus  claims  to  be  Roger 
Tichborne,  with  a  totally  different  in- 
dividual, namely,  Arthur  Orton,  is  in 
like  manner  asserted  and  contested. 
So  that  the  defendant  stands,  as  it 
were,  between  two  persons,  between 
Arthur  Orton  on  the  one  hand,  and 
Roger  Tichborne  on  the  other  ;  and 
while  he  asserts  he  is  Roger  Tich- 
borne, a  host  of  witnesses  declare  that 
he  is  Arthur  Orton;  so  that  the  same 
conflict  which  occurs  with  reference 
to  his  identity  with  Roger  Tichliorne 
occurs  with  reference  to  his  identity 
with  Arthur  Orton;  and  you  have  wit- 
ness after  witness  produced  to  s.iy  he 
is  Arthur  Orton,  and  witness  after 
witness  to  say  he  is  not."  Cockburn, 
C.  J.,  charge  in  Tichborne  case,  p. 
12. 

1  See  observations  as  to  comparative 
accuracy  in  this  respect,,  supra,  §§  9, 
11,  72. 

371 


§  410.]  THE   LAW   OF  EVIDENCE.  [BOOK  II. 

are  accustomed  to  see  a  particular  person  in  a  particular  place ; 
we  do  not  readily  recognize  him  when  we  see  him  out  of  that 
place  ;  when  we  visit  the  place  we  are  apt  to  imagine  we  see 
him  in  his  familiar  nook.  Great  allowance,  also,  is  to  be 
made  for  the  idiosyncrasies  of  memories.  A  great  master  of 
legal  logic  thus  speaks  :  "  There  are  things  which  pass  every 
day,  which  make  no  impression  on  the  mind  of  one  man,  but 
which  do  make  an  impression  on  the  mind  of  another.  Men 
dine  at  the  same  mess  or  table,  something  occurs  in  the  course 
of  the  conversation ;  one  man  remembers  it,  the  other  does  not 
think  of  it  any  more,  and  the  next  morning  it  is  forgotten. 
One  man  recollects  some  event  in  -  his  past  life,  more  or  less 
important,  or  more  or  less  trivial,  which  some  one  else  pres- 
ent at  the  same  time,  if  you  were  to  ask  him  about  it,  would 
have  no  knowledge  of  or  recollection  of  at  all.  Of  all  the  un- 
fathomable mysteries  which  the  human  mind  presents,  there  is 
none  in  my  view  so  astonishing  as  the  faculty  of  memory,  es- 
pecially in  the  matter  to  which  I  am  now  adverting ;  that  is  how 
some  things  comparatively  trivial  remain  indelibly  impressed  on 
the  recollection,  while  others,  far  more  important,  fade  away 
into  the  darkness  of  eternal  night  and  are  totally  and  entirely 
forgotten.  It  would  not  be  fair,  therefore,  to  say,  "  Here  are 
half  a  dozen  people  who  were  present  with  you  on  a  certain  oc- 
casion, and  they  all  recollect  a  certain  fact.  If  you  do  not  re- 
member it  you  cannot  be  the  man."  Still  less  just  would  it  be 
if  each  of  those  individuals  were  allowed  to  pick  out  some  pecul- 
iar circumstance  which  has  remained  impressed  on  his  individual 
memory,  and  then,  because  the  man  did  not  recollect  all  that 
the  six  persons  recollected,  it  should  be  said,  "  Oh,  you  cannot 
be  the  man."  I  quite  agree,  we  must  not  deal  with  a  man  in 
that  way  ;  it  would  be  unfair  and  unjust  to  do  so  ;  but  there  are 
things  which  it  is  next  to  impossible  any  one  should  forget,  and 
in  respect  of  those  things  we  are  entitled  to  require  that  a  man 
should  exhibit  some  knowledge,  when  you  know  that  they  hap- 
pened to  a  person  whom  he  represents  himself  to  be.  Yet  even 
here  we  must  be  on  our  guard ;  for  even  things  of  importance, 
things  that  you  would  have  expected  to  remain  impressed  on  a 
man's  memory,  often  pass  away  and  are  forgotten ;  but  if  you 
find  that  a  multitude  of  circumstances  such  as  you  cannot  rea- 
372 


CHAP.  VIII.]        WITNESSES  :    CIRCUMSTANTIALITY,  ETC.  [§  412. 

sonably  believe  that  a  man  could  have  forgotten  are  unknown,  a 
very  different  case  presents  itself."  ^  But  no  matter  how  uncer- 
tain a  witness's  memory  may  be,  or  may  be  admitted  to  be  by 
himself,  this,  it  must  be  mentioned  in  addition,  goes  to  his  credi- 
bility, not  his  competency .2 

§  411.    Fabricators   deal   usually  with   generalities,    avoiding 
circumstantial  references  which  may  be  likely  to  bring   Want  of 
their  statements  into  collision  with  other  evidence.     A    stanliality 
careful  avoidance  of  details,  when  persisted  in  during    fof^;""*^ 
cross-examination,  was  one  of  the  causes  of  the  break-   credit, 
ing  down  of  the  witnesses  against  Queen  Caroline ;    and   such 
avoidance  is  always  suspicious.^     The  conclusion,  however,  is  not 
one  of  technical  jurisprudence,  but  of  psychology.     Events   of 
remote  date  we  cannot  expect  a  witness  to  remember  in  detail ; 
and  some  portion,  at  least,  of  such  circumstances  we  must  be  pre- 
pared to  find  lost  in  haze.     If  involving  matters  of  deep  inter- 
est to  the  witness  they  may  be  remembered  in  their  effects,  but 
not  ordinarily  in  their  particulars.     A  minute  specification  of  de- 
tails, as  to  very  distant  events,  in  which  the  witness  had  no  per- 
sonal interest,  does  not  enhance  credit ;  ^  its  absence,  as  to  such 
events,  does  not  detract  from  credit.^     But  as  to  matters  which 
the  witness,  under  ordinary  circumstances,  would  remember,  the 
test  fairly  applies. 

§  412.  Falsum  in  uno,  falsum  in  omnibus,  is  a  maxim  which 
is  proper  in  cases  in  which  the  special  falsity  is  of  a   Fuhum  in 

.         ,      -   1    .  ,  11  ,.  «""  does 

natui'e  to  imply  falsity  as  to  the  whole  case  ;  ^  or  when   not  abso- 
the  contradictions  are  so  numerous  as  to  show  imbecil-   credii 

^  Cockburn,  C.  J.,  charge  in  Tich-  frequently  cited  and   api)Iied    in    our 

borne  case.  courts."     Broom's  Legal  Max.  289. 

2  Lewis  V.  Ins.  Co.  10  Gray,  508;         *  Willet   v.   Fister,    18    Wall.    91; 

Kuntzman  v.  Weaver,  20  Penn.   St.  Parker   v.    Chambers,    24    Ga.   518  ; 

422.  Chandler  v.  Hough,  7  La.  An.  441. 

8  See  supra,  §  S  et  seq.  ;  Spicott's         ^  Fulton  r.  Maccracken,  18  Md.  538; 

case,  5  Rep.  58;  Presbytery  of  Audi-  State  v.  Cowan,  7  Ired.  L.  239;  Black 

terarder  v.  Kinnoul,   6  CI.  &  F.  698;  v.  Black,  38  Ala.  111.     Infra.  §§   113, 

Walker  v.  Blassingame,  17  Ala.  810;  514. 

Cornet  v.  Bertelsmann,  61   Mo.   118.         "  Ilargraves  r.  Miller,  16  Oh.  338; 

'^  JJolosus   vcrsatur   in    (/eneralibus, —  StofTer  v.  State,  15  Oh.  St.  47;   llich- 

a  person  intending   to   deceive   deals  ardson  v.  Uol)ert9,  23  Ga.  215;  Smith 

in    general  terms,  —  which   has  been  v.  State,  23  Ga.  297;  Ivey  t;.  State,  23 

adopted  from   the   civil   law,  and   is  Ga.  576  ;  State  v.  Mix,  15  Mo.  153; 

373 


§  412.]  •  THE   LAW   OF  EVIDENCE.  [BOOK  II. 

ity  of  memory.^  The  maxim,  however,  should  not  be  pressed 
beyond  this  limit.  There  are  instances,  in  connection  even 
with  an  examination  in  chief,  in  which  a  witness  may  swear 
falsely  in  a  particular  line,  and  yet  with  such  truthfulness  as  to 
the  rest  of  the  case  that  it  would  work  injustice  to  throw  out  his 
testimony  entire.  It  is  said,  for  instance,  to  be  as  much  a  point 
of  honor  for  an  adulterer  to  shield  his  paramour  under  oath,  as 
it  is  to  shield  her  in  conversation.^  So  a  witness's  personal  as- 
sumptions may  be  false  while  his  relation  of  external  objects 
may  be  true.  The  Chevalier  D'Eon,  for  instance,  always  testi- 
fied as  a  man,  but  was  ultimately  proved  to  be  a  woman ;  but 
in  all  matters  of  business  the  Chevalier  D 'Eon's  word  was  held 
indisputable.  To  cross-examinations  these  observations  are  pe- 
culiarly applicable.  A  witness,  whom  it  may  be  attempted  to 
disgrace,  may  swear  falsely  as  to  some  sore  point  in  his  history 
which  may  be  touched,  yet  truly  as  to  the  rest  of  the  case.  On 
account  of  such  falsity  it  would  be  a  perversion  of  justice  to 
reject  the  rest  of  his  evidence.  It  may  be  proper  to  punish 
the  witness  for  his  perjury  ;  it  would  not  be  proper  to  punish 
the  party  innocently  calling  the  witness  by  refusing  to  believe 
what  was  true  in  the  witness's  testimony.  Nor  would  it  be  right 
to  tell  a  jury,  who  are  sworn  to  determine  a  case  according  to 
the  evidence,  that  they  are  to  reject  that  which  is  probably  true 
in  the  testimony  of  a  witness  because  that  testimony  contains 
something  that  is  probably  false.  Falsa  deinonstratio  noji  nocet, 
is  a  maxim  of  universal  application,  so  far  as  it  means  that  we 
may  reject  as  surplusage  a  false  description  that  is  not  vital  to 
the  object  of  controversy.^  It  should  be  remembered,  also,  that 
to  decide  that  a  statement  is  "  wilfully  "  false,  requires  a  fuller 
exhibition  of  evidence  than  can  usually  be  collaterally  given. 
Hence  it  is  that  the  maxim,  Falsum  iii  uno,falsum  in  omnibus, 
does  not  generally  hold  good  except  in  cases  where  the  party 
calling  the  witness  is  cognizant  of  the  falsehood,  or  where  the 
falsehood  goes  to  the  core  of  the  witness's  testimony.^     A  fortiori 

Paulette  v.  Brown,  40  Mo.  52 ;  Trox-  *  See,  generally,  Turner  v.  Foxall, 

dale  V.  State,  9  Humph.  411.  2  Cranch  C.  C.  324;  Lewis  v.  Hodg- 

1  Evans  v.  Lipscourt,  31  Ga.  71.  don,  17  Me.  267;  Parsons  v.  Huff,  41 

2  Infra,  §§  419,  433.  Me.  410;    Brett  v.   Catlin,  47    Barb. 
8  Broom's  Legal  Maxims,  629;  and  404;  Meixsell  v.  Williamson,  35  III 

see  infra,  §  945.  529;  Callanan  v.  Shaw,  24  Iowa,  441 

374 


CHAP.  VIII.]  WITNESSES :    CIRCUMSTANTIALITY.  [§  413. 

is  this  the  case  where  the  misstatement  is  inadvertent  or  attrib- 
utable to  the  ordinary  fluctuations  of  memory.^  Nor,  when  we 
undertake  to  test  credibility  by  this  standard,  should  we  fail  to 
remember  that  persons  vary  very  much  as  to  their  capacity  for 
remembering  details.  By  some,  the  recalling  of  numbers,  and 
of  words  as  previously  spoken  or  written,  is  a  task  which  can 
rarely  be  accomplished  ;  and  a  vehement  effort  thus  to  recall 
specific  words  or  figures,  instead  of  stimulating,  rather  distracts 
the  memory.  Very  few  persons  can  recall  the  precise  terms  of 
a  written  paper  they  have  not  committed  to  memory  ;  and  a 
failure  by  a  witness  to  recall  such  precise  terms  is  what  we 
should  expect,  and  it  should  not  therefore  be  permitted  to  dis- 
credit the  witness.^ 

§  413.  If  several  persons  are  sent  to  report  the  proceedings 
of  a  public  meeting,  and  if,  without  pretending  to  be   ^ 
perfect  stenographers,  they  should  bring  in  reports  of   incidence 
proceedings  and  speeches  exactly  coincident,  we  would   statementa 
say,  "  either  all  the  reports  are  fabrications,  or  one  re-   forTus- 
port  is  the  original  from  which  the  others  were  copied."   p"^'°°- 
To  witnesses  called,  not  because  they  had  previously  been  sent  to 
make  a  report,  but  because  it  transpired  subsequently  that  they 
had  been  at  the  meeting  in  question,  these  observations  apply 
with  even  greater  strength.     As  such  witnesses  are  under  oath, 
we  would  have  a  right  to  say,  "  The  whole  testimony  bears  the 
marks  of  concoction  ;  to  all  but  one  of  the  witnesses,  at  least,  per- 
jury is  assignable."  ^     "  Substantial  truth,  under  circumstantial 
variety,"  is  the  true  test  of  reliable  testimony  ;  *  and  the  circum- 
stantial variety  expands  or  contracts  in  multiplicity  in  proportion 
as  the  witness  examined  has  margin  of  observation,  and  is  left 
to  his  own  faculties  to  reproduce  what  he  sees  or  hoars.     If  two 
sheets  printed  from  the  same  type  should  differ  even  in  a  comma, 

Mercer  v.  Wright,  3  Wise.  645  ;  State  Blancbard  v.  Pratt,  37  111.  2J3;  Shanks 

V.  Williams,  2  Jones  (N.  C.)  L.  257;  v.  Hayes,  6  Ind.  59;  State  i'.  Peace,  1 

State  V.  Brantley,  G3  N.  C.  518 ;  Laven-  Jones  (N.  C.)  L.  231 ;  Jones  v.  Laney, 

burgh  V.  Harper,  27  Miss.  299;  People  2  Tex.  342;  Yoes  v.  State,  9  Ark.  42. 
V.  Strong,  30  Cal.  151.  "  Jackson  v.  McVey,  18  Johns.  R. 

1  Giltner   v.   Gorham,    4   McLean,  330.    Supra,  §410. 
402  ;    Miller   v.    Stem,   12  Penn.    St.         »  See  Greenl.  Test,  of  tlie  Evangel. 

883;  Brennan  v.  People,  15  111.  511;  §  134;  Brougham's  Speeches,  i.  215. 
Crabtree  v.  Hagenbaugh,  25  111.  233;         *  Paley's  Evidence,  part  iii.  ch.  i. 

375 


§  414.]  THE  LAW   OF  EVIDENCE.  [BOOK  II. 

we  should  attribute  it  to  carelessness  in  the  printer,  and  the  va- 
riation would  cause  us  much  surprise.  On  the  other  hand,  we 
would  be  still  more  surprised  if  two  persons,  who  had  read  the 
same  page  a  week  ago,  and  who  were  not  charged  with  com- 
mitting it  memoriter,  should  repeat  it  to  us  word  for  word,  and 
comma  for  comma.     It  is  in  this  sense  that  we  are  to  understand 

Aristotle's  famous  axiom,  Tiofikv  yap  aXrjOei  iravra  crwaSci  ra  vnapxovTa, 
7w  Sc  if/evSel  Ta;i(D  Siac^aret  Taky]6i<;.  As  to  suhstance,  harmony  is  one 
of  the  conditions  of  truth  ;  as  to  form,  wherever  there  is  truth 
and  liberty  there  is  variety. 

§  414.  Evidence  in  criminal  issues  not  being  within  the  range 
One  wit-  of  the  present  work,  it  is  unnecessary  to  dwell  on  the 
erafiv^'^'  limitations  by  which  in  treason  and  in  perjury  two  wit- 
provf  a*°  nesses  have  been  regarded  as  necessary  to  aconviction.^ 
case.  In  civil  issues,  with  but  few  exceptions,  a  case  can  be 

made  out  by  a  single  witness.  In  cases  of  bastardy,  however,  it 
is  necessary,  to  sustain  an  order  of  affiliation,  that  the  evidence  of 
the  mother  should  be  corroborated,  in  some  material  particular, 
by  other  testimony .2  In  equity  suits,  as  we  will  see  hereafter,^ 
when  a  defendant  denies  the  plaintiff's  case  in  toto,  it  requires 
something  more  than  a  single  witness  to  sustain  the  plaintiff's 
case.*  Under  the  New  York  Code,  a  verified  answer  is  not  evi- 
dence, and  hence  two  witnesses  are  not  necessary  in  a  case  where 
there  is  a  verified  answer,  in  the  pleadings,  denying  the  plaintiff's 
case.^ 

In  divorce  cases,  the  testimony  of  a  party,  uncorroborated,  has 
been  held  insufficient  to  establish  adultery.^  It  should  at  the 
same  time  be  remembered  that  we  have  derived  this  limitation 
from  the  English  ecclesiastical  courts,  whose  jurisdiction  is  now 
reduced  almost  to  a  nullity,  and  whose  judges  considered  them- 

^  See  Wlaart.  Cr.   Law  (7th  ed.),  As  to  practice  when  parties  are  ex- 

§  801    et  seq.,  in  which  these  topics  amined  as  witnesses,  see  infra,  §  487. 

are  treated.  ^  Stilwell  v.    Carpenter,   62  N.  Y. 

2  R.   V.  Roberts,   2   C.  &  K.  614  ;  639. 

Hodges   V.   Bennett,  5  H.   &  N.  625;  ^  Thayer  v.  Thayer,  101  Mass.  Ill; 

R.  V.  Read,  9  A.  &  E.  619.  Tate  v.  Tate,  26  N.  J.  Eq.  55;  Black 

8  Infra,  §  487.  v.  Black,  26  N.  J.  Eq.  431;  Bronson 

*  See  strong  expressions  to  this  ef-  v.  Bronson,  8  Phila.  R.  261  ;  Hays  v. 

feet  in  Down  v.  Ellis,  35  Beav.  578  ;  Hays,  19  Wise.  182  ;  Fugate  v.  Pierce, 

Nunn  V.  Fabian,   35   L.  J.   Ch.  140.  49  Mo.  446. 
Hartford  v.  Power,  8  I,  R.  Eq.  602. 

376 


CHAP.  VIII.]  WITNESSES  :    NUMBER   REQUIRED.  [§  414. 

selves  bound  by  canon  law  to  refuse  a  decree  upon  the  testimony 
of  a  single  witness,  unless  supported  by  "  adminicular  circum- 
stances." ^  "  This  doctrine  was  in  former  days  productive  of 
much  injustice;  "2  and  is  now  abandoned  even  as  to  divorce 
cases  by  the  statutory  prescription  of  the  rules  of  evidence  ob- 
served in  the  superior  courts  of  common  law.^  In  this  country, 
while  the  limitation  was  never  accepted  as  absolute,*  the  better 
opinion,  as  is  elsewhere  stated,  is,  that  whenever  corroboration  is 
from  the  nature  of  the  case  practical,  there  a  divorce  will  not  be 
granted  on  the  unsupported  testimony  of  a  party .^ 

In  suits  based  on  the  supposed  perjury  of  the  defendant,  as 
much  evidence,  it  has  been  said,  is  required  to  sustain  a  verdict 
as  is  required  in  prosecutions  for  perjury.^ 

So,  when  a  witness  is  a  particeps  criminis  his  testimony,  with- 
out corroboration,  is  entitled  to  little  weight.' 

Parties,  as  will  hereafter  be  seen,  being  now  admissible  as  wit- 
nesses, the  question  as  to  the  weight  of  a  party's  testimony, 
when  given  in  response  to  a  bill  in  chancery,  may  be  regarded  as 
settled.  A  party  is  now  to  be  received  as  would  be  any  other 
witness,  and  his  credibility  is  for  the  jury  as  is  that  of  other  wit- 
nesses.^ 

With  the  qualifications  above  noticed,  a  judgment  may  be 
rested  on  the  testimony  of  a  single  witness.  How  far  such  testi- 
mony is  to  be  believed  is  to  be  determined  by  the  circumstances 
of  the  particular  case.  The  presumptions  to  be  invoked  are  of 
fact  and  not  of  law.  In  cases  where  the  statements  of  the  wit- 
ness are  improbable,  or  are  those  of  a  partieejos  criminis^  slight 
credit  will  be  given  ;  ^  in  other  cases,  where  a  witness's  character 
is  unimpeached,  and  no  attempt  is  made  to  contradict  him,  his 
single  testimony  is  enough  to  prove  a  case.^° 

1  See   Taylor's   Ev.    §    883,    citing         '  Whart.    Or.    Law     (7tli    o.l.),    § 
Donellan  v.    Donellan,    2   Hagg.  Ecc.     783. 

R.    144;    Simmoiuls   c.    Simmonds,    5  ^  See  infra,  §  490. 

Ec.    &   Mar.    Cas.   324  ;    Ilutchins   v.  »  Siimlay  v.  Gordon,  Hlatch.  &  II. 

Denziloe,  1  Const.  R.  181.  5G9;    Lyon   v.   Lyon,  G2    Barb.    138; 

2  Taylor's  ¥.v.  §  883.  Donohne   i'.   Henry,   4    E.   I).   Smith, 
8  See   U.,  falsely  called  T.,  i;.  J.,  L.  I<i2;   IVmcc   v.    IVincc.  2J   N.  J.  Eq. 

R.  1  P.  &D.  461.  310;   Kittering   v.    Parker,   8   Ind.  44  ; 

*  Bishop,  Mar.  &  Div.  §  278.  lilankman    v.    Vallejo,    15    Cal.   638; 

6  See  infra,  §  433.  Evans  v.  Evans,  41  Cal.  103. 

«  Laiu'hran  v.  Kelly,  8  Cush.  l'>9.  "  See  Ford  v.  Haskell,  32   Conn. 

377 


§  415.] 


THE   LAW    OF   EVIDENCE. 


[book  II. 


§  415.  It  is  an  ordinary  conclusion  of  logic  that  the  testimony 
Affirnia-  of  a  credible  witness,  that  he  saw  or  heard  a  particu- 
mony^Ls'      ^'^^'  tiling  at  a  particular  time  and  place,  is  more  reli- 

stronger       .^^]j\q  than  that  of  an  equally  credible  witness  who,  with 

than  nega-  ... 

tive.  the  same  opportunities,  testifies  that  he  did  not  see  or 

hear  such  thing  at  such  time  and'  place.^  It  should  be  added, 
however,  that  the  weight  to  be  attached  to  the  negative  witness 
depends  upon  the  exhaustiveness  of  his  observation.  Put  an  in- 
telligent and  credible  witness  in  a  small  chamber,  open  through- 
out to  his  scrutiny,  and  his  testimony  that  in  that  chamber,  at  a 
given  time,  an  event  did  not  occur  which  could  not  have  occurred 
without  his  observation,  is  entitled  to  the  same  weight  with  that 
of  a  witness  who,  equally  intelligent  and  credible,  should  swear 
to  the  occurrence  of  the  event  at  the  same  time.^  A  negative 
witness,  also,  whose  attention  is  concentrated  on  a  particular 
point,  may  outweigh  an  affirmative  witness  whose  attention  has 


489  ;  and  see  Sugden  v.  St.  Leonards, 
cited  supra,  §§  1 38-9. 

1  Stitt  V.  kuidekopers,  17  Wall. 
384;  Ralph  v.  R.  R.  32  Wise.  177; 
Johnson  v.  State,  14  Ga.  55  ;  Todd  v. 
Hardie,  5  Ala.  698  ;  Pool  v.  Devers,  30 
Ala.  672  ;  Hepburn  v.  Bk.  2  La.  An. 
1007;  Auld  V.  Walton  12  La.  An. 
129;  Coles  v.  Perry,  7  Tex.  109. 

"  One  of  the  errors  assigned  and 
insisted  on  grows  out  of  the  conflict  in 
the  testimony  between  the  plaintiff 
and  the  two  defendants,  all  of  whom 
were  sworn  as  to  two  papers,  which 
the  defendants  aver  were  signed  by 
them  and  delivered  to  the  plaintiff  at 
the  time  the  escrow  was  signed,  one 
of  which  limited  the  time  within 
which  the  plaintiff"  could  pay  the 
money  and  take  up  the  deed  to  the 
1st  of  December,  and  the  other  agreed 
to  give  him  $2,500  out  of  the  $40,000 
so  paid.  No  such  papers  were  pro- 
duced, and  on  this  point  the  testi- 
mony is  conflicting.  The  plaintiff  de- 
nies the  receipt  of  any  such  papers, 
and  both  the  defendants  swear  posi- 
tively to  their  delivery  to  plaintiff". 

378 


"  On  this  subject  the  court  charged 
the  jury  '  that  it  is  a  rule  of  pre- 
sumptions that  ordinarily  a  witness 
who  testifies  to  an  affirmative  is  to  be 
preferred  to  one  who  testifies  to  a 
negative,  because  he  who  testifies  to 
a  negative  may  have  forgotten.  It  is 
possible  to  forget  a  thing  that  did 
happen.  It  is  not  possible  to  remem- 
ber a  thing  that  never  existed.' 

"  We  are  of  opinion  that  the  charge 
was  a  sound  exposition  of  a  recog- 
nized rule  of  evidence  of  frequent  ap- 
plication, and  that  the  reason  of  the 
rule,  as  stated  in  the  charge,  dispenses 
with  the  need  of  further  comment  on 
it  here."  Miller,  J.,  Stitt  v.  Huide- 
kopers,  17  Wall.  393,  394. 

2  Johnson  v.  Whidden,  32  Me.  230; 
Campbell  v.  Ins.  Co.  98  Mass.  381  ; 
Pollen  V.  Le  Roy,  10  Bosw.  (N.  Y.)  38; 
CoughUnr.  People,  18  111.  266  ;  Green- 
ville V.  Henry,  78  111.  150  ;  Blakey  v. 
Blakey,  33  Ala.  611  ;  Fox  v.  Mat- 
thews, 33  Miss.  433  ;  State  v.  Gates, 
20  Mo.  400.  See  Sobey  v.  Thomas, 
39  Wise.  317;  Bemis  v.  Becker,  1 
Kans.  226. 


CHAP.  VIII.]  WITNESSES  :    CREDIBILITY.  [§  417. 

not  been  so  concentrated.^  On  the  other  hand,  as  the  space  cov- 
ered by  a  negative  witness  becomes  undetermined,  his  testimony 
loses  in  weight.^  Thus  a  witness  who  swears  that  a  party  did 
not  receive  value  for  a  promissory  note,  caunot  counterbalance  a 
witness  who  swears  to  a  transaction  transferring  such  value.*^ 

§  416.    Supposing,   however,  the  witnesses  on  the  one   side 
are  equal  in  intelligence,  opportunities  of  observation,    when 
memory,  and  truthfulness,  to  the  witnesses  on  the  other   wftnesses 
side,  what  rule  is  to  be  folloAved  ?    Indubitably,  in  such    prepomier- 
case,  the  decision   should  follow  the  greater  number   "P^^  ^o  ^^ 

...  given  to 

of  witnesses,  when  the  disproportion  is  marked.  Two  number, 
witnesses,  all  other  things  being  equal,  are  less  likely  to  be  mis- 
taken than  one.^  Where,  however,  the  numbers  on  each  side  are 
large,  no  artificial  rule  of  this  order  can  be  applied.^  Nor  should 
it  be  forgotten  that  one  witness,  corroborated  by  facts  or  doc- 
uments, may  outweigh  a  multitude  whose  testimony  may  have 
been  the  result  of  imperfect  observation,  or  have  been  influenced 
by  prejudice.^ 

§  417.  Credibility,  based  upon  such  considerations  as  those  just 
noticed,  is,  it  should  be  always  remembered,  for  the  credibility 
jury,  under  such  instructions,  as  to  the  reason  of  the  '^  for  jury, 
case,  as  may  be  given  by  the  court.  It  should  at  the  same  time 
be  equally  kept  in  mind  that  the  presumptions  usually  in- 
voked in  this  relation  are  presumptions  of  fact,  based  on  free 
logic,  and  are  not  presumptions  of  technical  law."  It  need 
scarcely  be  added  that  the  importance  of  applying  psychological 
tests,  resting  on  the  motives  which  may  lead  a  witness  to  deceive, 

1  Reeves  v.  Poindexter,  8  Jones  (L.)  '  Supra,  §  124  ;  Ray  v.  Donnell,  4 
N.  C.  308,  M'Lean,    r)04  ;    Biirtus   v.    Tisdall,  4 

2  Abel  V.  Fitch,  20  Conn.  90;  Barb.  571 ;  Harrison  r.  Broik,  1  ^^lunf. 
Thomas  v.  De  Graffenreid,  17  Ala.  22;  French  r.  Millard,  2  Oh.  St.  14  ; 
602.  Lewis  v.  Lewis,  9  Ind.  105  ;  Terry  v. 

8  Matthews    v.    Poythress,    4    Ga.  State,  13  Ind.  70  ;  Kinchelow  r.  State, 

287.  5    llumi)h.   9  ;    Ridley    r.    Ri.lley,    1 

4  See  Dowdell  v.  Neal,  10  Ga.  148.  Coldw.   323;  Hardee   i-.  Williams,  30 

6  Cockburn,    C.    J.,    in    Tichborne  Ga.    921  ;  Mf.ore   v.   Jones,    13    Ala. 

case;  M'Loes  v.   Felt,   11   Ind.  218;  296  ;  Conisto.k   v.  Rayford,  20  Miss. 

Glenn   v.   Bank,  70   N.   C.   191.     See  369  ;  Shellabarc;er  r.  NaCus.  15  Kans. 

Sanborn  v.  Babcock,  33  Wise.  400.  54  7.     Amon^'  these  jiresmnptions  may 

«  See  supra,  §  8  ;  and  see  McCrum  be  noticed  those  drawn   from  the  wit- 

V.  Corby,  15  Kans.  112.  ness'e  manner.     Ii)id. 

379 


§  419.]  THE   LAW   OF  EVIDENCE.  [BOOK  n. 

or  the  character  whicli  deprives  him  of  trustworthiness,  is  en- 
hanced by  the  statutory  removal  of  disqualification  from  interest, 
from  infancy,  and  from  atheism. 

§  418.  When  the  court  is  satisfied  that  a  witness  is  so  drunk 
Intoxi-  as  to  be  unable  to  testify,  he  may  be  excluded,  or  his 
nelsesTn-'  examination  postponed  till  he  is  sober.^  But  to  exclude 
competent,  g,  witness  it  is  not  sufficient  that  he  has  been  found  to 
be  a  habitual  drunkard,  under  the  statute.^  The  use  of  opium 
cannot  be  introduced  to  impair  credit,  unless  it  be  shown  that 
the  witness  was  under  the  influence  of  opium  when  examined, 
or  when  the  litigated  event  occurred.^ 

§  419.  It  is  unnecessary  at  present  to  do  more  than  allude  to 
„.^  the  reasons  which  have  led,  both  in  England  and  the 

Witnesses  '  *=• 

no  longer      United  States,  to  the  abrogation  of  the  old  common 

disquali-  ,     ,.  .  ^  .  . 

fed  by  in-  law  rule  excluding  interested  parties.  The  impolicy  of 
such  exclusion  has  been  shown  by  Mr.  Bentham  with 
a  quaint  vigor  which  leaves  little  to  be  done  by  those  who  fol- 
low in  the  same  line.  We  have  already  noticed  the  untruth  of 
the  assumption  that  a  pecuniary  interest  is  stronger  than  other 
interests ;  and  the  same  reasoning  *  that  leads  to  the  rejection  of 
witnesses  in  one  case  of  interest  would  justify  their  rejection  in 
all  other  cases  of  interest.  Yet  if  all  kinds  of  interest  should  dis- 
qualify witnesses,  few  witnesses  could  be  sworn,  for  there  are  few 
witnesses  who  in  some  way  are  not  interested  in  the  cases  as  to 
whicli  they  are  called  upon  to  testify.  As,  therefore,  it  is  im- 
possible to  exclude  all  interested  witnesses,  the  question  arises 
why  pecuniary  interest  alone  should  disqualify.  Is  pecuniary  in- 
terest more  intense  than  other  forms  of  interest  ?  It  may  be ; 
but  it  is  b}?^  no  means  the  interest  most  likely  to  cause  a  witness 
to  speak  untruthfully.  Men  dealing  with  money  are  likely  to  be 
more  exact  in  their  words  than  those  not  accustomed  so  to  deal. 
A  business  man  knows  that  he  has  to  pay  such  penalties  for  ex- 
aggeration that,  as  a  usual  thing,  he  refrains  from  exaggeration. 
A  business  man  who  does  not  keep  his  word  is  disgraced,  and 

I  Hartford  v.  Palmer,  16  Johns.  R.  3  McDowell  v.  Preston,  26  Ga.  528. 

143 ;  Gould  V.  Crawford,  2  Barr,  89  ;  As   to  insane   witnesses,    see   supra, 

State  V.  Underwood,  6  Ired.  96.  §§401,  402. 

3  Gebhart  v.  Shindle,  15  S.  &  R,  ^  Supra,  §408. 

380 


CHAP.  VIII.]     WITNESSES :   INTEREST   NO   DISQUALIFICATION.      [§  419. 

ceases  to  be  a  business  man.  Such  men  hold  truth  peculiarly- 
sacred,  not  simply  from  the  love  of  truth,  but  because  falsehood 
to  them  is  ruin.  By  the  common  law,  however,  a  business  man 
with  an  interest  of  a  penny  in  a  case  was  excluded,  while  a  wit- 
ness who  is  bound  to  one  of  the  parties  by  the  most  passionate 
ties  was  nevertheless  a  witness  for  such  party.  Who,  for  in- 
stance, is  more  likely  to  swear  for  another  through  thick  and  thin 
than  an  associate  in  a  raid  which  strongly  excites  partisan  sympa- 
thy ?  Nor  does  this  spring  necessarily  from  a  conscious  desire  to 
pervert  truth.  In  collision  cases,  for  instance,  all  the  witnesses 
may  be  honest ;  yet  there  are  few  collision  cases,  as  has  been 
already  noticed,  in  which  each  witness  does  not  swear  with  his 
ship.  In  riots,  also,  in  which  the  responsibility  of  two  warring 
factions  is  involved,  it  is  notorious  that  the  witnesses  belonging 
to  each  faction  swear  together,  even  in  respect  to  issues  as  to 
which  it  is  impossible  to  give  credit  to  the  one  body  of  witnesses 
without  imputing  perjury  to  the  other  body.  Party  spirit,  to  as- 
cend to  a  higher  line  of  illustration,  makes  us  unwilling  to  see,  and, 
a  fortiori^  unwilling  to  narrate,  that  which  is  disadvantageous  to 
those  to  whom  we  are  attached  ;  and  even  if  our  perceptions  are 
not  thus  affected,  between  a  willing  and  an  unwilling  witness 
the  practical  difference  is  great.  And  stronger  than  party  spirit 
are  to  be  reckoned  those  strong  family  instincts  which  render  the 
parent  ready  to  make  great  sacrifices  on  behalf  of  the  child, 
the  child  on  behalf  of  the  parent,  the  brother  on  behalf  of  the 
brother.  Attachments  such  as  these  may  take  hold  of  weak 
minds  and  so  warp  them  as  to  make  them  unconscious  of  the 
falsity  of  their  false  statements,  while  the  influence  wrought  by 
a  pecuniary  interest  is  usually  one  of  which  the  witness  himself 
is  conscious  ;  and  he  belongs  to  a  class  peculiarly  susceptible  to 
the  difference  between  the  true  and  the  false,  wliich  is  the  most 
exposed  to  ruin  from  speaking  falsehood,  and  which  is  obliged  to 
attach  peculiar  sanctity  to  truth.  This  line  of  reasoning,  coupled 
with  a  growing  consciousness  that  the  truth,  in  judicial  inves- 
tigations, is  best  brought  out  by  the  exhibition  of  all  relevant 
testimony,  has  led  to  the  now  universal  statutory  abrogation  of 
the  old  rule  excluding  parties  and  persons  having  a  pecuniary 
take  in  the  issue. ^ 
1  See  Sorg  v.  First  German  Cong.  G3  Pcnn.  St.  ISG;  Forrester  v.  Tor- 
SSI 


§  420.] 


THE   LAW   OF   EVIDENCE. 


[book  n. 


§  420.  It  has  been  doubted  whether  a  lawyer  who,  in  any 
Counsel  ia  Capacity,  has  addressed  a  jury  in  a  cause,  may  be  per- 
brwhness-  '^^ittcd  to  testify  in  the  same  cause  as  a  witness ;  ^ 
^^-  though  as  this  might  in  extraordinary  cases  work  in- 

justice, the  exchision  should  be  confined  to  those  instances  in 
which  the  attempt  is  recklessly  and  unnecessarily  to  unite  the 
functions  of  counsel  and  witness.^  The  mere  fact  that  the  case 
has  been  opened  by  an  attorney,  who  has  previously  cross-exam- 
ined witnesses  on  the  other  side,  does  not  make  him  incompetent 
as  a  witness  for  his  client.'^  Where,  however,  counsel  thus  be- 
come witnesses,  it  may  be  a  j)roper  exercise  of  the  discretion 
of  the  court  to  prohibit  them  from  subsequently  addressing  the 
jury  on  the  case  thus  made  up ;  and  the  testifying  of  the  counsel 
should  be  confined  to  extreme  cases  as  to  which  there  is  no 
other  proof.*  But,  as  a  general  rule,  a  lawyer  is  a  competent 
witness  in  a  case  he  is  trying  or  directing.^ 


rence,  64  Penn.  St.  29 ;  Knerr  v.  HoflF- 
man,  65  Penn.  St.  126;  Dailey  v.  Mon- 
day, 32  Tex.  141. 

1  Stones  V.  Byron,  9  D.  &  L.  393  ; 
Deane  v.  Packwood,  9  D.  &  L.  395  ; 
Carrington  v.  Holabird,  17  Conn.  530; 
Quarles  v.  Waldron,  20  Ala.  21 7. 

2  State  V.  Cook,  23  La.  An.  347. 
See  TiUon  v.  Beecber,  Pamph.  Rept., 
for  an  illustration  of  a  case  in  which 
such  testimony  was  admitted. 

8  FoUansbee  v.  Walker,  72  Penn. 
St.  228. 

^  See  Cobbett  v.  Hudson,  1  E.  & 
B.  11  ;  Ross  V.  Demoss,  45  111.  44  7  ; 
Madden  v.  Farmer,  7  La.  An.  580  ; 
Boissy  V.  Lacou,  10  La.  An.  29.  As 
to  Georgia  statute,  excluding  attor- 
neys from  testi  ying  for  their  clients, 
see  Churchill  r.  Corker,  25  Ga.  479  ; 
Hines  r.  State,  26  Ga.  614  ;  Sharman 
j;.  Morton,  31  Ga.  34. 

6  Potter  U.Ware,  1  Cush.  519;  Tul- 
locku.  Cunningham,  1  Cow.  256;  Folly 
V.  Smith,  7  Halst.  139  ;  Bell  v.  Bell,  12 
Penn.  St.  235  ;  FoUansbee  v.  Walker, 
72  Penn.  St.  230 ;  Morgan  v.  Roberts, 
38  111.  65  ;  Abbott  v.  Striblen,  6  Iowa, 
382 


191;  State  v.  Woodside,  9  Ired.  496; 
Morrow  v.  Parkman,  14  Ala.  769  ; 
Grant's  Succession,  14  La.  An.  795. 

"  On  the  trial  of  this  case,  A.  S. 
Foster,  Esq. ,  was  offered  as  a  witness 
on  the  part  of  the  defence,  objected 
to  by  the  plaintiff's  counsel,  and  re- 
jected by  the  court  for  the  following 
reason :  '  Mr.  Foster  is  attorney  for 
the  defendant  FoUansbee,  opened  the 
case  for  him  to  the  jury,  and  exam- 
ined the  witnesses  for  said  defendant, 
and  the  court  on  this  ground  excludes 
him  as  a  witness.'  This  is  assigned 
for  error. 

"In  Frear  v.  Drinker,  8  Barr,  521, 
Mr.  Justice  Rogers  says  :  '  It  is  also 
contended  an  attorney  is  not  a  compe- 
tent witness  for  his  client.  In  Eng- 
land, it  has  been  lately  ruled  that  an 
attorney  is  not  to  give  evidence  under 
certain  circumstances.'  He  cites  two 
cases  before  Mr.  Justice  Patteson  and 
Mr.  Justice  Erie,  and  he  says,  '  The 
furthest  the  court  has  yet  gone  is  to 
discourage  the  practice  of  acting  in 
the  double  capacity  of  attorney  and 
witness,  but  there  is  nothing  to  pro- 


CHAP.  Vin.]  WITNESSES  :   HUSBAND  AND   WIFE. 


[§  421. 


V.   DISTINCTIVE  RULES   AS  TO  HUSBAND  AND  WIFE. 

§  421.  Where  the  relation  of  husband  and  wife  under  the  local 
law  makes  either  incompetent  as  a  witness  for  or  against   Husband 
the  other,  it  is  necessary,  to  work  such  incompetency,    competent' 
that  a  valid  marriage  should  be  proved.     Primd  facie   o"ijer^]^ 
every  person  is  competent  to  testify  in  all  issues  :  if  he   ■'"'^s  ^^ 

''    '-  ^  _  ~  common 

is  to  be  excluded  by  the  policy  of  the  law,  the  burden   law. 

is  on  the  party  objecting  to  him  to  show  the  reason  for  such  ex- 


hibit an  attorney  from  being  a  wit- 
ness for  his  client,  when  he  does  not 
address  the  jury.  It  is  said,  and  I 
agree,  that  it  is  a  highly  indecent 
practice  for  an  attorney  to  cross-ex- 
amine witnesses,  address  the  jury,  and 
give  evidence  himself  to  contradict 
the  witnesses.  It  is  a  practice  which, 
as  far  as  possible,  should  be  discoun- 
tenanced by  courts  and  counsel.  But 
these  cases  are  not  open  to  this  objec- 
tion, because  it  appears  negatively 
that  the  counsel  did  not  address  the 
jury.  It  is  sometimes  indispensable 
that  an  attorney,  to  prevent  injustice, 
should  give  evidence  for  his  client.' 
In  the  earlier  cases  in  Pennsylvania, 
the  objection  to  the  examination  of 
the  attorney  in  the  cause  was  his  in- 
terest in  it,  as  in  the  case  of  the  late 
Judge  Baldwin,  in  Miles  v.  O'Hara,  1 
S.  &  R.  32,  in  1814.  In  the  first  case, 
Newman  v.  Bradley,  1  Dallas,  240,  in 
the  year  1788,  Howell,  who  was  of 
counsel  for  the  plaintiff,  gave  the 
chief  evidence  to  support  the  action, 
and  he  and  Tod  argued  the  cause  be- 
fore the  jury,  and  there  was  a  ver- 
dict for  the  plaintiir.  '  When  Howell 
offered  himself  as  a  witness.  Levy  ob- 
jected that  he  was  interested,  inas- 
much as  his  judgment  fee  depended 
on  his  success  in  tlie  cause.  But  the 
objection  Avas  overruled  by  the  court.' 
The  two  English  cases  cited  by  Judge 
Rogers  have  since  been  overruled. 
Pitt  Taylor,  in  the  second  volume  of 


his  Treatise  on  the  Law  of  Evidence, 
p.  1170,  §  1240,  4th  ed.,  thus  states 
the  law :  '  The  judges  at  nisi  prius 
were  at  one  time  inclined  to  regard 
as  incompetent  to  testify  all  persons, 
whether  counsel,  attorneys,  or  par- 
ties, who,  being  engaged  in  a  cause, 
had  actually  addressed  the  jury  on 
behalf  of  that  side  upon  which  they 
were  afterwards  called  to  give  evi- 
dence. Further  investigation  of  the 
subject,  however,  has  led  to  a  judicial 
acknowledgment  that  no  such  practice 
exists.'  The  authority  for  this,  Cor- 
bett  V.  Hudson,  22  L.  J.  Q.  B.  11, 
1852,  the  judgment  of  the  court  (of 
which  Mr.  Justice  Erie  was  one)  be- 
ing delivered  by  Lord  Campbell,  C.  J. 

"  The  question  may,  therefore,  be 
considered  as  settled  in  England  and 
Pennsylvania,  and  also  in  Massachu- 
setts. Potter  V.  Inhabitants  of  Ware, 
1  Cush.  519.  There  was  therefore 
error  in  holding  Mr.  Foster  was  not 
a  competent  witness."  Read,  C.  J., 
Follansbee  i-.  Walker,  72  Penn.  St. 
230. 

By  the  Roman  law  no  attorney  is 
permitted  to  testify  as  to  a  matter  in 
which  he  is  profes.-ionaliy  employed, 
and  this  prohibition  iiuludes  all  con- 
fidential professional  agents.  See  L. 
25,  D.  xxii.  5  ;  and  see  HclTter,  Civil 
Proe.  205. 

Pricilecje  in  professional  cotnmunica- 
(ions  is  hereafter  discussed.  Infra, 
§57G. 

383 


§  421.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


elusion.  Intimate  sexual  relations  do  not  constitute  such  reason, 
even  though  disguised  by  a  pretended  though  invalid  marriage.^ 
Where  a  man  and  a  -woman  lived,  as  they  supposed,  as  husband 
and  wife,  but  separated,  in  consequence  of  the  woman  discover- 
ing that  a  former  husband,  believed  to  be  dead,  was  still  alive,  it 
was  held  that  the  woman  was  a  competent  witness  against  such 
a  man,  with  whom  she  thus  lived  as  a  second  husband,  even  as 
to  facts  she  learned  from  him  during  their  cohabitation.^  For 
when  a  former  existing  marriage  is  conceded,  no  subsequent  mar- 
riage, no  matter  how  solemn,  can  operate  to  invest  witnesses 
with  incapacities  which  a  valid  marriage  alone  can  establish.-^ 
1  Battliews  v.  Galindo,  4  Bing.  610;     her  protector,  though  she  passed  by 


S.  C.  3  C.  &  P.  238;  Campbell  v. 
Twemlow,  1  Price,  31 ;  Divoll  v.  Lead- 
better,  4  Pick.  220;  People  v.  Mc- 
Craney,  6  Parker  C.  R.  49;  State  v. 
Taylor,  Phill.  (N.  C.)  L.  508;  Flanagin 
0.  State,  25  Ark.  92. 

2  Wells  V.  Fletcher,  5  C.  &  P.  12; 
People  V.  McCraney,  6  Parker  C.  R.  49. 

3  R.  V.  Serjeant,  Ry.  &  M.  354  ;  R. 
V.  Jones,  C.  &  M.  614;  R.  v.  Madden, 
14  Up.  Can.  Q.  B.  588;  State  v.  Pat- 
terson, 2  Ired.  346;  Finney  v.  State, 
3  Head  (Tenn.),  544;  State  v.  John- 
son, 12  Minn.  4  76. 

It  is  said  that  Lord  Kenyon  once 
rejected  a  woman,  called  as  a  witness 
for  a  putative  husband,  to  whom  she 
was  never  married,  but  who  acknowl- 
edged her  as  his  wife  ;  Anon.,  cited 
by  Richards,  B.,in  1  Price,  83;  but  in 
that  case  the  criminal  had,  throughout 
the  trial,  admitted  that  the  witness  was 
his  wife,  and  was  thus  in  a  manner 
estopped  from  denying  the  marriage 
when  her  competency  was  questioned ; 
and  in  the  subsequent  case  of  Batthews 
V.  Galindo,  4  Bing.  610,  612,  613;  3 
C.  &  P.  238,  and  1  M.  &  P.  565, 
S.  C,  where  Lord  Kenyon's  ruling 
was  discussed,  Park  and  Burroughs, 
JJ.,  declared  that  his  decision  was 
founded  on  this  admission,  and  the 
whole  court  determined  that  a  kept 
mistress  was  a  competent  witness  for 

384 


his  name  and  appeared  to  the  world 
as  his  wife.  The  same  view  was  after- 
wards taken  even  as  to  confidential 
communications  between  persons  un- 
truly believing  themselves  husband 
and  wife;  though  in  the  latter  case 
the  parties  had  separated  before  the 
trial,  on  hearing  that  a  former  hus- 
band of  the  woman  was  still  alive. 
Wells  V.  Fletcher,  5  C.  &  P.  1 2,  per 
Patteson,  J.  ;  .S.  C,  7i07n.  Wells  v. 
Fisher,  1  M.  &  Rob.  99,  and  n.  It 
seems,  also,  from  this  last  case,  and 
from  several  others;  R.  v.  Peat,  2  Lew. 
C.  C.  288;  R.  V.  Wakefield,  Ibid.  279; 
1  Russ.,  C.  &  M.  218,  n.  t;  that  a  sup- 
posed husband  or  wife  may  be  ex- 
amined on  the  voii-e  dire  to  facts 
showing  the  invalidity  of  the  mar- 
riage; and  it  is  appi-ehended  that  no 
valid  reason  can  be  given  for  not  ad- 
mitting their  evidence  thus  far,  though 
the  fact  that  the  marriage  ceremony 
has  been  actually  performed  may  have 
been  previously  proved  by  indepen- 
dent testimony  ;  R.  i'.  Bramley,  6  T. 
R.  330;  R.  v.  Bathirick,  2  B.  &  Ad. 
646,  where  Lord  Tenterden  observed, 
"  that  it  might  well  be  doubted, 
whether  the  competency  of  a  witness 
can  depend  upon  the  marshalling  of 
the  evidence,  or  the  particular  stage 
of  the  cause  at  which  the  witness  may 
be  called.     Taylor's  Ev.  §  1231. 


CHAP.  VIII.]  WITNESSES :    HUSBAND   AND   WIFE. 


[§  423. 


§  422.  Marriage,  however,  being  proved,  neither  husband  or 
wife  is  competent  at  common  law  to  testify  in  a  suit  for  or 
against  the  other,^  nor  can  either  be  admitted  as  a  witness  to 
sustain  the  other's  interests.^  An  exception  to  this  rule  exists  in 
prosecutions  for  violence  committed  by  husband  on  wife,  in  which 
cases  the  wife  may  be  examined  as  a  witness  against  the  hus- 
band,^ or  for  him.* 

§  423.  In  cases  in  which  a  party  could  be  a  witness  for  himself, 
marital  disqualification  ceases.^  Thus,  even  at  common  law,  a 
wife  can  be  a  witness  for  her  husband,  to  prove  the  contents  of 
his  lost  trunk  in  an  action  against  the  carrier.^  So  a  merely  con- 
tingent reversionary  interest  in  the  husband,  he  not  being  a 
party,  does  not  exclude  the  wife.'^  So  a  wife  may  testify  to  her 
husband's  original  entries,  when  she  keeps  his  books  for  him.^ 
So  in  a  suit  brought  by  an  infant  through  his  procJiein  anii^  it  is 
no  objection  to  the  admissibility  of  a  witness  that  she  is  the  wife 


1  R.  V.  Smith,  1  Mood.  C.  C.  289  ; 
R.  V.  Payne,  12  Cox  C.  C.  110  ;  State 
V.  Welsh,  26  Me.  30 ;  Kelley  v.  Proc- 
tor, 41  N.  H.  139;  Blain  v.  Patterson, 
48  N.  H.  151  ;  Manchester  v.  Man- 
chester, 24  Vt.  G49  ;  Seargent  v.  Sew- 
ard, 31  Vt.  509;  Com.  v.  Marsh,  10 
Pick.  57  ;  Lucas  v.  State,  23  Conn. 
18  ;  Bird  v.  Davis,  14  N.  J.  Eq. 
467  ;  Copous  v.  Kauffman,  8  Paige, 
583 ;  Ilasbrouck  v.  Vandervoordt,  9 
N.  Y.  153;  Snyder  v.  Snyder,  6  Bin- 
ney,  488;  Pringle  v.  Pringle,  59  Penn. 
St.  281  ;  Miller  v.  Williamson,  5  Md. 
219;  Corse  v.  Patterson,  6  liar.  &  J. 
153;  Kyle  v.  Frost,  29  Ind.  382;  Taul- 
man  v.  State,  37  Ind.  353;  Mountain 
V.  Fisher,  22  Wise.  93  ;  Osborn  v. 
Black,  Speers  (S.  C),  431;  Williams 
J'.  State,  44  Ala.  24;  Tulley  v.  Alex- 
ander, 11  La.  An.  628  ;  State  v.  Ber- 
lin, 42  Mo.  572;  Smead  y.  Williamson, 
16  B.  Mon.  492;  Gilkey  v.  Peeler,  22 
Tex.  663;  Whitehead  v.  Foley,  28 
Tex.  268. 

2  Dwelly  V.  Dwelly,  46  Me.  377; 
Hosack  V.  Rogers,  8  Paige,  229;  Marsh- 

voL.  I.  25 


man  v.  Conkhn,  17  N.  J.  Eq.  282;  Cobb 
V.  Edmondson,  30  Ga.  30;  Caperton 
V.  Callison,  1  J.  J.  Marsh.  397;  Wil- 
son V.  Sheppard,  28  Ala.  623;  Cull 
V.  rierwig,  18  La.  An.  315.  See  the 
authorities  for  this  rule  in  its  criminal 
relations  in  Whart.  Cr.  Law,  7th  ed. 
§  768  et  seq. 

8  Whart.  Cr.  Law,  7th  e<l.  §  769; 
R.  V.  Sergeant,  R.  &  M.  352  ;  People  v. 
Fitzpatrick,  5  Parker  C.  R.  26. 

*  Com.  V.  Murphy,  4  Allen,  491  ; 
State  V.  Neill,  6  Ala  685.  See  State  v. 
Bennett,  31  Iowa,  24. 

^  Jackson  v.  Bard,  4  Johns.  R.  230; 
Sneckner  v.  Taylor,  1  Redf.  (N.  Y.) 
427;  Peaceable  v.  Keep,  1  Ycates, 
576;  Daniel  v.  Proctor,  1  Dcv.  (Law) 
428. 

6  McGill  V.  Rowand,  3  Penn.  St. 
451;  Illinois  R.  K.  v.  Taylor,  24  111. 
323;  Sasscen  v.  Clark,  37  Ga.  242. 

">  Dyer  v.  Homer,  22  Pick.  253  ; 
Town  y.  Ncodhara,  3  Paige,  .'■»46. 

8  Littlefield  v.  Rice,  10  Mctc.  287. 
See  Perry  v.  Whitney,  30  Vt.  390. 

385 


§  425.]  THE  LAW   OF  EVIDENCE.  [BOOK  U. 

of  tlie  prochein  ami.^  So  the  wife,  in  a  habeas  corpus  brought 
by  heL-  husband  to  obtain  her  custody,  may  testify  to  acts  of 
cruelty  committed  by  liim.^ 

§  424.  In  suits  in  which  either  husband  or  wife  is  a  party, 
But  may  either  the  man  or  the  woman  may  be  examined  on  the 
be  a  wit- '  y^^y  ^^yg  ^^  ^^  ^^^-j^  marriage  ;  ^  though  to  establish  the 
prove  inai-   marriage,  proof  aliunde  must  be  adduced.     The  rea- 

riage  col-  o   '    r  ^  .,.,,. 

laterally,  soning  is  simply  this  :  if  the  marriage  is  valid,  tlie  wit- 
ness is  not  competent ;  admitting  that  which  he  is  offered  to 
prove,  then  he  is  incompetent  as  a  witness  in  the  suit.  This 
conclusion,  however,  does  not  apply  to  police  or  collateral  in- 
quiries.^ Thus  it  has  been  held  in  Pennsylvania,  that  a  woman 
is  a  competent  witness  to  prove  the  contract  of  marriage  in  a  pro- 
ceeding by  the  guardians  of  the  poor  to  compel  the  alleged  hus- 
band to  contribute  to  her  support.^  So  a  wife,  when  her  chil- 
dren's legitimacy  is  at  issue,  may  testify  to  the  validity  of  the 
marriage.^  To  invalidate  a  second  marriage,  by  proving  the  ex- 
istence of  a  first  marriage,  either  party  is  competent^ 

§  425.  It  cannot  be  safely  held  that  a  wife's  testimony  cannot 
Wife  can-  be  received  when  it  tends  to  criminate  the  husband ; 
pdied  to'""  because,  however  important  it  may  be  that  the  husband 
criminate      should  iiot  be  convicted  and  punished  on  such  testi- 

her  bus-  _      ^  _  •'-  _  . 

band.  mony,  it  is  equally  important  that  in  suits  between 

strangers,  justice  should  not  be  denied  in  order  to  sustain  a  privi- 
lege which  under  such  circumstances  rests*  mainly  on  sentiment. 
In  a  suit  between  A.  and  B.,  when  C.  is  called  as  a  witness  by 
B.,  and  gives  testimony  which  is  perjured,  to  refuse  to  permit 

^  Leavitt  v.  Bangor,  41  Me.  458;  ownbehalf,  in  a  suit  of  divorce  brought 

Bonett  I'.  Stowell,  37  Vt.  258.  by  her,  to  prove  a  marriage.     Bissell 

2  People  V.  Mercein,  8  Paige,  47.  v.  Bissell,  55  Barb.  325.     But  at  com- 

*  Seeley  v.  Engell,  13  N.  Y.  542.  mon  law,  either  husband  or  wife  may 

*  R.  V.  Peat,  2  Lew.  C.  C.  288;  R.  be  a  witness  to  prove  marriage  col- 
V.  Bramley,  6  T.  R.  330;  R.  v.  Bath-  laterally  in  all  cases  in  which  proof  of 
wick,  2  B.  &  Ad.  646;  R.  r.  Bienvenu,  the  marriage  would  not  make  the  wit- 
15  Low.  C.J.  181;  Scherpf  u.  Szadec-  ness  incompetent.  Willis  v.  Under- 
zky,  4  E.  D.  Smith,   110;  Redgrave  hill,  6  How.  N.  Y.  (Pr.)  396. 

V.  Redgrave,   38   Md.   93  ;     Williams  ^  Guardians  of  the  Poor  v.  Nathans, 

V.  State,  44  Ala.  24.      In  New  York,  2  Brewst.  149. 

however,  under  the  statute  permitting  ^  Christy  v.  Clarke,  45  Barb.  529. 

a  wife  to  testify  in  matters  affecting  '  Shaak's  Est.  4  Brewst.  305. 
her  husband,  she  may  testify  in  her 

386 


CHAP.  VIII.]  WITNESSES:    HUSBAND   AND    WIFE. 


[§  426. 


C.'s  wife  to  be  examined,  to  show  C.'s  untruthfulness,  would  be 
to  sacrifice  tlie  justice  of  the  cause,  and  this  to  maintain  privi- 
leges which  C.  has  forfeited.  Hence  it  has  been  held,  that  a 
man  or  a  woman  may  testify  in  a  collateral  case  to  matters  which 
tend  to  criminate  the  man's  wife  or  the  woman's  husband.^  Yet 
while  such  testimony  will  be  admitted,  it  will  not  be  cowpelled. 
A  wife,  for  instance,  such  is  the  tendency  of  authority,  will  not 
be  compelled,  against  her  protest,  to  charge  her  husband,  even 
collaterally,  with  crime.^  As  to  matters  disgracing,  though  not 
criminating,  an  answer  will  be  compelled.^  How  far  common 
disability  in  this  respect  is  modified  by  recent  statutes,  so  far  as 
concerns  criminal  law,  is  discussed  in  another  treatise.'^  How 
far  such  statutes  affect  civil  cases  will  be  considered  in  a  future 
section  of  this  chapter.^ 

§  426.  It  has  been  ruled  in  Canada  that  on  an  indictment  for 
bigamy  the  first  wife  is  inadmissible  for  the  defence  to    ^   ^ 

r>        J  In  prosecu- 

prove  that  her  marriage  is  invalid.^     This,    however,    J'.o'isCor 
is   founded   on  a  petitio   principii.     The   question    is   lawful  wife 
whether  the  first  marriage  is  valid.     If  so,  she  is  not  a   piove  mar- 
witness,"  but  she  is  a  witness  if  such  marriage  is  invalid.    "^*''^' 
For  the  court  to  refuse  to  admit  her,  when  called  by  the  defence, 
to  disprove  the  marriage,  is  to  prejudge  the  question  in  issue. 


1  See  infra,  §  432;  R.  v.  Bathwick, 
2  B.  &  Ad.  639;  R.  v.  All  Saints,  6 
Maule  &  S.  194;  R.  v.  Halliday,  8 
Cox,  298;  Henman  v.  Dickinson,  5 
Bing.  183;  Com.  v.  Reid,  8  Phila.  R. 
609. 

2  Cartwright  v.  Green,  8  Ves.  405 ; 
R.  V.  All  Saints,  6  Maule  &  S.  200; 
State  V.  Briggs,  9  R.  I.  361;  Com.  v. 
Reid,  8  Phila.  R.  385.  See  fully  in- 
fra, §  432. 

8  Ware  v.  State,  35  N.  J.  L.  553. 

"  The  (jiiestion  Avhether  a  wife  is 
bound  to  answer  questions  crimin.ating 
her  husband  is  not  in  a  satisfactory 
state.  It  was  held  at  common  law,  in 
R.  V.  Claviger,  2  T.  R.  268,  that  a 
wife  could  not  be  compelled  to  answer 
questions  criminating  her  husband. 
In  R.   r.  Worcester,   6  M.  &  S.   194, 


Lord  Ellenborough  held  that  a  wife 
was  competent  to  answer  such  ques- 
tions, and  that  the  answers  were  not 
excluded  on  the  ground  of  public  pol- 
icy ;  but  Bayley,  J.,  was  of  opinion 
that  a  wife  who  threw  herself  upon 
the  protection  of  the  court  would  not 
be  compelled  to  answer.  In  ecjuity 
there  is  no  doubt  that  a  wife  c:innot 
be  compelled  to  answer  any  question 
which  may  expose  her  husband  to  a 
charge  of  felony.  Cartwright  v.  Green, 
8  Ves.  410."  Powell's  Evidence  (4th. 
cd.),  110. 

<  Whart.  Cr.  Law  (7th  od.),  §  767 
ct  xeq. 

6  See  infra,  §  432. 

0  K.  V.  Madden,  14  Up.  Can.  Q.  B. 
58H;  R.  V.  Tubbee,  1  Up.  Can.  P.  R, 
103. 

387 


§  427.]  THE   LAW   OF   EVIDENCE.  [BOOK  U. 

That  she  cannot  be  called  to  sustain  the  marriage  is  clear,  for 
she  is  excluded  by  the  very  hypothesis  she  is  called  to  support. 
The  proper  course  is  to  examine  her  on  her  voir  dire.  If  she 
claims  to  be  the  first  wife,  on  her  own  showing  she  is  inadmissi- 
ble. If  she  denies  that  she  was  married  to  the  defendant,  then 
she  should  be  admitted,  and  the  jury  directed  to  disregard  her 
testimony  if  they  believe  her  to  be  the  defendant's  wife.^  Other- 
wise material  testimony  might  be  excluded  on  a  hypothesis  not 
only  artificial  but  false.  On  the  other  hand,  if  a  man  be  prose- 
cuted for  bigamy,  his  first  wife,  the  validity  of  whose  marriage  is 
assumed  by  the  prosecution,  cannot  be  called  to  prove  her  mar- 
riage with  the  defendant.^  The  first  marriage  being  established, 
the  woman,  with  whom  the  second  marriage  was  had,  is  a  com- 
petent witness  either  for  or  against  the  prisoner ;  for  the  second 
marriage  is  void.^  It  is  said,  indeed,  that  if  the  proof  of  the 
first  marriage  were  doubtful,  and  the  fact  were  controverted,  the 
witness  could  not  be  admitted.^  It  has,  however,  been  argued 
by  a  respectable  authority  that  the  lawful  wife,  though  incom- 
petent as  a  witness,  may  appear  in  court  for  the  purpose  of  being 
identified,  although  by  this  process  suspicion  may  attach  to  her 
husband ;  it  being  said,  by  way  of  illustration,  that  she  may  be 
thus  produced  to  be  identified  as  having  passed  a  note  which  he 
is  charged  with  having  stolen.^ 

§  427.  Independent  of  the  question  of  interest,  the  law,  in 
Neither  view  of  the  high  importance  of  preserving  intact  the 
nor  wi"e  Confidence  and  security  of  the  marriage  state,  regards 
can  testify   confidential  communications  between  husband  and  wife 

as  to  con- 
fidential       as  privileged,  and  refuses  to  permit  either  to  be  inter- 

mantal  re-  ^  o       '  ^.  ^  /»  t         •    i     • 

lations.  rogated  as  to  what  occurred  in  their  confidential  in- 
tercourse  during  their  marital  relations.^  The  privilege,  how- 
ever, is  personal  to  the  parties ;  a  third  person,  who  happened  to 

1  Peat's  case,  2  Lewin,  288;  R.  v.  &  M.  354,  per  Abbott,  C.  J.,  and  cases 
Wakefield,   Ibid.    279;    which  cases,     cited,  §§423-5. 

however,  only  intimate  such  a  course,         *  Grigg's  case,  T.  Ray.  1. 

without  positively  sanctioning  it.  ^  Alison,   Pract.  of  Cr.    Law,  463; 

2  Grigg's  case,  T.  Ray.  1;  1  Hale,      Taylor's  Evidence,  §  1231. 

693;  1  Russ.   C.  &  M.  218;  Whart.  ^  Dexter   v.  Booth,  2  Allen,    559; 

Cr.  Law  (7th  ed.),  §  768  e<  sc(7.  ;  and  Baldwin    v.  Parker,   99    Mass.     79; 

gee  supra,  §  421.  Raynes  v.  Bennett,  114   Mass.    424; 

8  B.  N.  P.  287;  R.  v.  Serjeant,  Ry.  Drew  v.  Tarbell,  117  Mass.  90;  Brad- 

388 


CHAP.  VIII.]  WITNESSES:    HUSBAND    AND   WIFE. 


[§  427. 


overhear  a  confidential  conversation  between  husband  and  wife, 
may  be  examined  as  to  such  conversation.^  Nor  does  the  privi- 
lege extend  to  conversations  with  third  parties  which  the  wife 
overheard  ;  ^  nor  does  it  protect  conversations  between  husband 
and  wife  overheard  by  third  parties  ; "  though  it  is  otherwise  if 
such  third  persons  are  infants,  taking  no  part  in  the  conversa- 
tion.^ Tlie  privilege,  also,  extends  only  to  confidential  commu- 
nications, and  does  not  cover  knowledge  derived  from  general 
intercourse.^ 


ford  V.  Williams,  2  Md.  Ch.  1;  Wad- 
dams  i;.  Ilmnphrey,  22  111.  661;  Cos- 
tello  V.  Costdlo,  41  Ga.  613;  Wade's 
Succession,  21  La.  An.  343.  A  hus- 
band, under  the  Massachusetts  stat- 
ute, cannot  be  admitted  to  testify  as 
to  his  private  conversations  with  his 
wife,  so  as  to  charge  his  wife  with  li- 
ability based  on  such  conversations. 
Drew  V.  Tarbell,  1 1 7  ]\Iass.  90.  So 
under  Missouri  statute;  Moore  v.  Win- 
gate,  53  Mo.  398;  though  in  other  re- 
spects either  husband  or  wife  may  be 
a  witness  for  the  other.  Chesley  v. 
Chesley,  54  Mo.  347. 

1  Com.  V.  Griffin,  110  Mass.  181. 

2  Mercer  v.  Patterson,  41  Ind.  440. 
8  State  V.  Center,  35  Vt.  379;  Kea- 

tor  V.  Dimmick,  46  Barb.  158;  Alli- 
son V.  Barrow,  3  Coldw.  414.  On 
this  point  see  Westerman  v.  Wester- 
man,  25  Oh.  St.  500;  cited  infra, 
§431. 

*  "  The  conversation  between  the 
husband  and  wife  appears  by  her  tes- 
timony to  have  been  had  in  the  pres- 
ence of  no  other  person  except  their 
family  of  young  children,  who  are  not 
shown  to  have  taken  any  j)arl  in,  or 
paid  any  attention  to,  the  conversation. 
It  must,  therefore,  be  deemed  incom- 
petent evidence  as  a  private  conver- 
sation between  husband  and  wife. 
Dexter  v.  Booth,  2  Allen,  559;  Bliss 
r.  Franklin,  13  Allen,  244;  St.  1870, 
c.  393,  §  1."  Gray,  C.  J.,  Jacobs  v. 
Hesler,  113  Mass.  160. 


^  The  point  in  the  text  is  thus  dis- 
cussed :  "  The  widow  of  the  intestate 
Whitcomb  was  not  a  party,  nor  one  of 
the  parties  to  the  suit;  Gen.  Sts.  c.  131, 
§  14;  nor  was  the  contract  or  cause 
of  action  made  or  transacted  with  her 
in  the  lifetime  of  her  husband  and  in 
his  absence.  St.  1865,  c.  207,  §  2.  Her 
competency  as  a  witness  in  this  case 
does  not  depend  upon  the  recent  stat- 
utes. The  dit(iualification  of  pecun- 
iary interest,  which  formerly  excluded 
parties,  is  indeed  now  removed;  but 
the  rules  of  the  common  law,  founded 
on  public  policy,  which  relate  to  the 
competency  of  the  wife  to  testify  for 
or  against  her  husband,  still  prevail. 
Upon  the  point  pressed  by  the  plain- 
tiff in  review,  —  that  this  disfpialifica- 
tion  of  the  wife,  continuing  after  the 
death  of  her  husband,  is  not  liiniteJ 
to  private  conversations  between  them 
during  marriage,  but  extends  to  all 
facts  and  transactions  which  then 
came  to  her  knowledge,  —  it  is  enough 
to  say  that  the  contrary  has  been  re- 
cently decided  by  this  court  in  a  case 
like  the  one  here  presented.  Robin- 
son V.  Talmadge,  9  7  Mass.  171  ;  Dex- 
ter V.  Booth,  2  Allen,  559;  Kelly  v. 
Drew,  12  Allen,  107;  Colhn  r.  Jones, 
13  Pick.  441,  4f5."  Colt,  J.,  Litch- 
field I'.  Mcrritt,  102  Mass.  524.  See, 
as  bearing  on  this  to[)ic,  Tracy  c. 
Kcllcy,  52  Ind.  535. 

As  to  statutory  changes  in  this  re- 
spect sec  infra,  §§  430-1. 

389 


§  428.]  THE  LAW  OF  EVIDENCE.  [ROOK  II. 

§  428.  Whether  the  incompetency  of  husband  and  wife  as  wit- 
Consent  nesses  in  suits  in  which  either  is  concerned  is  a  priv- 
rJih'^"'''^  ilege  of  the  party,  or  a  privilege  of  the  public,  is  a  ques- 
privilege.  ^ion  that  has  been  much  discussed.  On  the  one  side  it 
is  argued  that  the  welfare  of  society  depends  upon  marital  con- 
fidence being  inviolable,  and  that  consent  of  parties  can  no  more 
do  away  with  this  inviolability,  than  the  consent  of  parties  can 
do  away  with  the  marriage  tie.^  The  twain  are  legally  made 
one  flesh  ;  consent  cannot  sever  them  and  resolve  them  into  inde- 
pendent parties.  On  the  other  side  it  is  argued  that  even  on 
the  showing  of  those  who  set  up  this  inviolability,  it  has  its 
exceptions,  for  husbands  and  wives  are  permitted  to  testify  on 
opposite  sides  of  suits  between  strangers,  and  in  all  cases  of  per- 
sonal violence,  can  testify  against  each  other,  which  would  not  be 
permitted  if  the  policy  of  the  law  regarded  them  as  absolutely 
identical.  It  is  further  insisted  that  public  justice  is  advanced  by 
having  all  obtainable  relevant  evidence  poured  into  a  case,  leav- 
ing credibility  to  be  determined  as  a  matter  of  fact ;  and  though 
public  justice  may  be  required  to  yield  in  cases  where  by  calling 
either  husband  or  wife  to  testify  the  peace  of  a  family  may  be 
destroyed  ;  yet  this  is  not  necessary  when  the  husband  desires  the 
examination  of  the  wife,  or  the  wife  desires  the  examination  of 
the  husband,  because  by  such  consent  the  peace  of  the  family 
is  promoted.  Hence  it  is  that  Best,  C.  J.,  once  permitted  the 
examination  of  a  wife  when  the  husband  consented,^  though  his 
conclusion  has  been  subsequently  questioned,  and  is  still  open  to 
doubt.^  In  England,  by  the  act  16  &  17  Vict.,  husbands  and 
wives  of  parties  are  made  competent  witnesses  in  such  cases.* 

^  See  Barker  v.  Dixie,  Cas.  temp,  afterwards  offered  to  waive  the  objec- 

Hardw.  260;  Colbern's  case,  1  Wheel,  tion,  but  the  judge  refused  to  receive 

C.  C.  4  79.  the    waiver.      Under    these    circura- 

2  Pedley  v.   Wellesley,  3  C.  &  P.  stances,   the   learned  bai'ons,  without 

558.  deciding   the    question   whether    the 

^  Barbat  v.  Allen,  7  Ex.  R.  109.  witness  could  be   thus  examined  by 

*  Taylor's  Evidence,  §  1219  A.     In  consent,  were  contented  to  hold  that 

Barbat  v.  Allen,  supra,  the  defendant  it  was  at  least  discretionary  with  the 

had  called  his  wife  as  a  witness,  but  judge,  whether  he   would   allow   the 

the  judge  at  nisi  prius  had  rejected  objection   to   be  withdrawn,   and  he 

her    testimony    on    objection    taken,  having  refused  to  do  so,  declined  to 

[This  was  before  the  passing  of  the  interfere.     Barbat  v.   Allen,  7  Ex.  R. 

Actl6&17  Vict.c.  83.]    The  plaintiff  609. 
390 


CHAP.  VIII.]  WITNESSES:    HUSBAND   AND   WIFE. 


[§  430. 


§  429.  Where  the  relationship  has  ceased  by  cleath,i  or  by 
divorce,^  the  wife  may  be  admitted  for  or  against  the    ^ 

.  1,11-  •  ^         ,  Effect  oa 

former  husband  or  his  representatives  (or  the  converse),  admissi- 
though  she  is  precluded  from  testifying  as  to  informa-  death  or 
tion  derived  confidentially  during  marital  intercourse.'^          norce. 

§  430.  The   reason  for   the  exclusion  of   husband   and   wife, 
when    called   for    or   against    the    other,    being    social   General 
policy,  and  not  interest,  statutes  abolishing  incompe-    removinff 
tency  restino"  on  interest  do  not  remove  the  common    t|'-abiiitie3 
law  incompetency  of  husband  and  wife  for  or  against   touch  this. 
the  other.*     This  is  eminently  the  case  in  respect,  as  will  pres- 

1  Doker  r.  Hasler,  R.  &  M.  198;  Barnes  v.  Caraack,  1  Barbour,  392; 
Dexter  v.  Booth,  2  Allen,  559;  Bax-  llatcliff  v.  Wales,  1  Hill,  G3;  Cook 
ter  V.  Knowles,  12  Allen,  114  ;  Dobson     v.  Grange,  18  Oliio,  526;  State  y.  Dud- 


V.  Racey,  8  N.  Y.  216;  Gebhart  v. 
Shindle,  15  S.  &  R.  237;  Thomas  v. 
Maddan,  50  Penn.  St.  261;  Wallis  v. 
Briiton,  1  Har,  &  J.  478;  Morris  ?;. 
Harris,  9  Gill,  19;  William  &  Mary 
College  V.  Powell,  12  Grat.  372  ;  Sto- 
ber  V.  Me  Carter,  4  Oh.  St.  513  ;  Wool- 
ley  V.  Turner,  13  Ind.  253  ;  Haugh  v. 
Blythe,  20  Ind.  24;  Shaffer  v.  Rich- 
ardson, 27  Ind.  122;  Mercer  t*.  Patter- 
son, 41  Ind.  440;  Tracy  u.  Kelley,  52 
Ind.  535  ;  Lockwood  v.  Mills,  39  111. 
602  ;  Pratt  v.  Delavan,  17  Iowa,  307  ; 


ley,  7  Wise.  664 ;  Crook  v.  Henry,  25 
Wise.  569;  Herrick  u.  Odell,  29  Mich. 
47;  Anderson  v.  Anderson,  9  Kans. 
112. 

*  Monroe  v.  Twistleton,Peakc's  Ev. 
Ap.  39;  Doker  v.  Hasler,  R.  &  M.  198; 
Avison  V.  Kinnaird,  6  East,  192;  Stein 
V.  Bowman,  13  Peters,  209;  Ryan  v. 
Follansbee,  47  N.  H.  100;  Coffin  v. 
Jones,  13  Pick.  444 ;  Williams  v.  Bald- 
win, 7  Vt.  503;  State  v.  Phelps,  2 
Tyler,  374  ;  Gray  v.  Cole,  5  Harr. 
(Del.)  418;  Wells  v.  Tucker,  3  Binn. 


McGnire  v.  Maloney,   1   B.  Mon.  224;     366;  Cornell  v.  Vanartsdalon,  4  Penn. 


English  V.  Cropper,  8  Bush,  292  ;  Price 
V.  Joyner,  3  Ilawkes,  418;  Gaskill  v. 
Kinn;,  12  Ired.  L.  211;  Moselcy  v. 
Eakin,  15  Rich.  (S.  C.)  324;  Hay  v. 
Hay,  3  Rich.  (S.  C.)  Eq.  384;  Saun- 
ders 0.  Ilendrix,  5  Ala.  224;  Stuhlmul- 
ler  V.  Ewing,  39  Miss.  447;  Sherwood 
V.  Hill,  25  Mo.  391;  Keys  v.  Baldwin, 
33  Tex.  666.  In  Illinois  the  common 
law  disability  remains  unaffected  by 
statute.  Reeves  v.  Ilerr,  59  111.  81.  By 
statute  in  Massachusetts,  the  widow  is 
a  Avitness  for  the  administrator,  though 
not  as  to  confiilential  communications. 
Robinson  v.  Talinadge,  97  Mass.  171. 
As  to  New  Hampshire  statute,  sec 
Winship  V.  Enfield,  42  N.  II.  197. 
8  Dickerman  v.  Graves,  6  Cush.  308; 


St.  364;  Griffin  v.  Smith,  45  Ind.  366; 
Spradling  v.  Conway,  51  Mo.  51  ; 
State  I'.  Jolly,  3  D.  &  Bat.  110;  Lingo 
V.  State,  29  Ga.  470:  Brewer  v.  Fer- 
guson, 11  Humph.  565. 

*  Lucas  V.  Brooks,  18  Wall.  436; 
McKeen  v.  Frost.  46  Me.  239;  Young 
V.  Gilman,  46  N.  H.  484  ;  Cram  v. 
Cram,  23  Vt.  15;  Lunay  i'.  Vantyne, 
40  Vt.  501;  Kelly  i'.  Drew,  12  Allen, 
107;  Drew  v.  Tarbell,  117  Ma.^s.  90; 
Symonds  v.  Peck,  10  How.  (N.  Y.) 
Pr.  395  ;  Rich  c.  Husson,  4  Sandf. 
115;  Mitchinson  v.  Cross,  58  111.  366; 
Bevins  v.  Cline,  21  Ind.  37;  Pea  o. 
Pea,  35  Ind.  387;  Stanley  v.  Stanton, 
36  Ind.  445;  Costollo  v.  Costello,  41 
Ga.  613;  Dunlap  v.  Ikarn,  37  Misa. 
391 


§  431.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


ently  be  seen,  to  the  confidential  communications  to  each  other 

of  husband  and  wife.^ 

§  431.  Under  special  statutes,  husband   and  wife,  in  several 

_,  ^  iurisdictions,  have  been  made  competent  witnesses  in 

Under  spe-         .  .  .  . 

ciai  ena-  suits  affecting  each  otlier.^  These  statutes,  it  may  be 
utes  may  generally  remarked,  in  conferring  competency,  do  not 
^* '  •  ■  preclude  the  parties  from  taking  advantage  of  the  right 
of  withholding  privileged  communications  which  occurred  during 
coverture  and  not  in  the  presence  of  third  parties  ;  ^  nor  do  they 
strip  the  parties  of  the  right  to  decline  to  answer  criminating 
qfuestions.^  Privilege,  as  it  exists  at  common  law,  can  be  as- 
serted in  all  cases  in  which  it  is  not  specifically  prohibited  by 
statute.^ 


471  (though  see  Lockhart  v.  Luker, 
36  Miss.  68);  Funk  v.  Dillon,  21  Mo. 
294  ;  Birdsall  v.  Dunn,  16  Wise.  235; 
Hobby  V.  Wisconsin  Bk.  17  Wise.  167. 
See  infra,  §  478. 

1  See  infra,  §  478. 

2  Packet  Co.  v .  Clough,  20  Wall. 
628;  State  v.  Black,  63  Me.  210; 
Burke  v.  Savage,  13  Allen,  408;  Mer- 
riam  V.  R.  R.  20  Conn.  354;  South- 
wick  V.  Southwick,  49  N.  Y.  510; 
Marsh  v.  Potter,  30  Barb.  506  ;  Bron- 
son  V.  Bronson,  8  Phila.  R.  261;  Del- 
linger's  Appeal,  71  Penn.  St.  425  ; 
Robinson  v.  Chadwick,  22  Oh.  St. 
627;  Monk  v.  Steinfort,  39  Wise.  370; 
Bennifield  v.  Hjpres,  38  Ind.  498  ; 
McNail  V.  Ziegler,  68  111.  224;  State 
V.  Nash,  10  Iowa,  81  ;  Ruth  v.  Ford, 
9  Kans.  17;  Furrow  v.  Chapin,  13 
Kans.  107  ;  Bradsher  v.  Brooks,  71 
N.  C.  322;  Chesley  v.  Chesley,  54  Mo. 
347;  Evers  v.  Ins.  Co.  59  Mo.  429. 

8  McKeen  v.  Frost,  46  Me.  239 ; 
Jones  V.  Simpson,  59  Me.  180;  Young 
V.  Gilman,  46  N.  H.  484;  Dexter  v. 
Booth,  2  Allen,  559  ;  Burke  v.  Savage, 
13  Allen,  408;  Bliss  u.  Franklin,  13 
Allen,  244  ;  Packard  v.  Reynolds,  100 
Mass.  153;  Baxter  v.  R.  R.  102  Mass. 
385;  Raynes  v.  Bennett,  114  Mass. 
424;  Drew  v.  Tarbell,  117  Mass.  90; 
392 


People  V.  Reagle,  60  Barb.  527;  South- 
wick V.  Southwick,  49  N.  Y.  513; 
Wehrkamp  v.  Willett,  4  Abb.  (N.  Y.) 
App.  548;  Westerman  y.  Westerman, 

25  Oh.  St.  500;  Bevins  v.  Cline,  21 
Ind.  371 ;  Thomas  v.  Barbour,  49  HI. 
370;  Mitchinson  v.  Cross,  58  111.  366; 
Reeves  v.  Herr,  59  111.  81  ;  Jackson 
V.  Jackson,  40  Ga.  157;  Costello  v. 
Costello,  41  Ga.  613;  Buck  v.  Ash- 
brook,  51  Mo.  539;  Moore  v.  Win- 
gate,  53  Mo.  398;  Magness  v.  Walker, 

26  Ark.  470;  Creamer  v.  State,  34 
Tex.  173;  State  v.  McCord,  8  Kans. 
232. 

*  Bronson  v.  Bronson,  8  Phila.  R. 

261. 

6  The  statutes  bearing  on  marital 
incompetency  are  so  numerous  and 
various  as  to  defy  analysis.  The  fol- 
lowing, however,  may  be  taken  as  il- 
lustrations :  — 

In  New  Hampshire  the  statutes  are 
thus  recapitulated  :  — 

"  In  State  v.  Moulton,  48  N.  H. 
485,  it  was  expressly  held  that  the 
recent  statutes,  making  the  wife  a 
witness  for  her  husband,  do  not  apply 
in  criminal  cases.  A  different  rule  is 
now  established  by  the  following  stat- 
ute, P.  L.  1871,  c.  38,  §  2  :  '  In  any 
case   where  the    respondent    in    any 


CHAP.  VIII.]  WITNESSES  :    HUSBAND   AND   WIFE. 


[§  432. 


§  432.  If  it  were  held  that  a  husband  could  not  be  permitted 
to  contradict  his  wife,  or  a  wife  her  husband,  not  only    iinsband 
would  a  part  of  the  truth  be  kept  out  of  the  case,  but  an    llllfvbe^ad- 
unfair  advantage  would  be  given  to  the  party  who  has    "'i'te'i  to 

"  ...  contradict 

the  fortuitous  advantage  of  priority  in  call.     By  this   each  other. 


criminal  prosecution  is  allowed  to  tes- 
tify by  law,  the  wife  of  such  respon- 
dent shall  be  a  competent  witness.' 
Sec.  3.  '  This  act  shall  apply  to  all 
cases  now  pending,  and  shall  take 
effect  upon  its  passage.'  Approved 
July  13,  1871. 

"  lu  civil  cases,  under  the  provisions 
of  §  22,  of  c.  209,  Gen.  Sts.  (as 
amended  by  P.  L.  1869,  c.  29,  and  P. 
L.  1870,  c.  20),  the  wife  may  testify 
for  or  against  her  husband,  and  the 
husband  for  or  against  the  wife,  in 
any  case,  when  it  appears  to  the  court 
that  their  examination  as  witnesses 
upon  the  points  to  which  their  testi- 
mony is  offered  would  not  lead  to  a 
violation  of  marital  confidence;  and 
in  the  trial  of  any  civil  suit  or  pro- 
ceeding in  which  a  husband  or  wife  is 
competent,  or  shall  be  admitted  to  tes- 
tify as  witnesses  for  or  against  each 
other  on  one  side  of  a  case,  the  same 
right  shall  exist  on  the  opposite  side 
of  the  case.  Besides  these  general 
provisions,  applicable  to  all  cases 
alike,  the  husband  and  wife  are  by 
statute  (Gen.  Sts.  c.  209,  §§  20,  21) 
made  witnesses  for  or  against  each 
other,  whether  joined  as  parties  or 
not,  in  the  following  cases :  1st.  In 
actions  upon  insurance  policies,  so  far 
as  relates  to  the  amount  and  value  of 
the  property  insured.  2d.  In  suits 
against  common  carriers,  so  far  as  re- 
lates to  the  loss,  amount,  and  value  of 
the  property  in  ([uestion.  3d.  In  ac- 
tions on  matter  arising  before  mar- 
riage. 4th.  In  suits  for  personal  in- 
juries to  the  wife,  or  for  damages  to 
the  husband  on  that  account."  State 
V.  Straw,  50  N.  II.  400,  Ladd,  J. 


In  Massachusetts,  by  St.  18G5,  the 
wife  may  be  a  witness  as  to  contracts 
made  in  her  husband's  absence.  This, 
however,  does  not  relieve  disability 
except  in  the  business  transactions 
conducted  by  the  wife  in  such  ab- 
sence. Baxter  v.  R.  R.  102  Mass. 
385. 

"  The  facts  alleged  did  not  make 
the  plaintiff's  wife  a  competent  wit- 
ness. She  was  offered  because  it  was 
alleged  that  she  was  tlie  only  })erson 
who  saw  and  knew  the  facts  attending 
the  escape  of  the  plaintiff's  (!0w  from 
his  lot.  By  the  St.  of  18G5,  c.  207, 
§  2,  she  may  be  a  witness  whenever 
the  contract  or  cause  of  action  in  is- 
sue and  on  trial  was  made  or  trans- 
acted with  her  in  the  absence  of  her 
husband.  She  was  rightly  excluded, 
because  the  terms  of  the  statute  did 
not  include  such  a  case  as  this.  Bliss 
V.  Franklin,  13  Allen,  244."  Chap- 
man, C.  J.,  Baxter  v.  R.  R.  102  Mass. 
385. 

Under  the  Illinois  statute  husband 
and  wife  are  not  competent  witnesses 
against  each  other,  though  in  certain 
cases  they  may  be  examined  in  each 
other's  behalf.  Ilawver  v.  Ilawver, 
78  111.412;  Trepp  r.  Barker,  78  111. 
14G  ;  Primmer  v.  Clabaugh,  78  111. 
94. 

In  New  York,  under  tlie  provisions 
of  the  Act  of  1SG7  (c.  88  7,  Laws  of 
18G7),  in  an  action  between  liusl>and 
and  wife,  either  is  a  witness  in  his  or 
her  behalf,  against  the  other,  save  in 
the  cases  e.Kceptod  in  the  act.  Tlic 
act,  it  is  held,  ai)plie8  to  all  trials 
thereafter  had  in  actions  pending 
when  it  took  effect,  and  under  it  tho 

393 


§  432.] 


THE  LAW   OF  EVIDENCE. 


[book  II. 


accident  it  would  be  determined  whether  the  husband's  version 
or  the  wife's   should  be  received.     Whoever  would  happen  to 


husband  or  wife  can  testify  to  conver- 
sations and  communications  (not  con- 
fidential) had  with  the  other  prior  to 
the  taking  effect  of  the  act.  South- 
wick  V.  Southwick,  49  N.  Y.  510. 

"  This  statute,"  says  Folger,  J.,  giv- 
ing the  judgment  of  the  court,  "seems 
to  be  the  complement  in  this  respect 
of  those  sections  of  the  Code,  and,  as 
they  were  intended  to  remove  the  dis- 
qualification of  being  a  party,  so  this 
is  to  remove  the  disqualification  of 
being  a  husband  or  wife,  so  that,  un- 
der the  Code  and  this  act  as  one,  there 
may  be  neither  the  disqualification  of 
being  a  party,  nor  that  of  being  a  mar- 
ried person.  And  it  was  admitted  in 
many  of  these  decisions,  that  the  letter 
of  the  sections  of  the  Code  extended 
to,  and  clearly  embraced,  married  per- 
sons, when  they  were  parties.  Wehr- 
kamp  V.  Willett,  1  Keyes,  250;  Smith 
V.  Smith,  15  Harr.  Pr.  R.  165.  But 
the  courts,  venerating  the  common  law 
rule,  which  prevented  married  persons 
being  witnesses  for  or  against  each 
other,  save  in  very  exceptional  cases, 
deemed  it  requisite  that  the  legislature 
should,  more  explicitly  than  it  had 
done  in  those  sections,  express  an  in- 
tention to  abrogate  that  rule,  before 
the  judiciary  should  declare  that  it 
was  broken.  The  decisions  were  put, 
not  upon  the  lack  of  literal  force  in 
the  statute,  but  in  a  reluctance  to  find 
in  the  words  the  intent  to  invade  a 
rule  so  ancient  and  so  thoroughly 
founded.  It  will  be  pei'ceived  that  in 
the  Act  of  1867  there  is  the  same,  if 
not  greater,  literal  force  than  in  the 
Code ;  while  at  the  same  time  it  must 
be  conceded  that  by  it,  at  the  narrow- 
est view  of  it,  the  common  law  rule 
is,  beyond  dispute,  seriously  impaired. 
The  reason  of  that  rule  was  because 
of  an  identity  of  interest  in  husband 

394 


and  wife,  wherefore  they  might  not  be 
witnesses  for  each  other;  and  because 
of  the  closeness  of  the  marriage  rela- 
tion and  its  mutual  and  unrestrained 
confidences,  wherefore  it  was  against 
public  policy  that  they  should  be  wit- 
nesses against  each  other,  for  that  it 
tended  to  implacable  quarrels  and  di- 
visions. But  the  reason  is  ignored 
when  a  wife  may  be  called  by  a  stran- 
ger as  a  witness  against  her  husband, 
or  by  her  husband  against  a  stranger, 
as  much  as  when,  being  a  party  against 
her  husba'nd,'she  is  sworn  in  her  own 
behalf,  or  is  called  by  him  to  his  ad- 
vantage. 

"  Then  as  to  the  intent  of  the  act. 
So  far  we  have  noticed  only  the  first 
section  of  the  act.  If  it  be  thought  — 
and  it  seems  to  have  been  so  thought 
by  a  learned  court  —  that  the  language 
of  the  first  section  does  not  fully  con- 
vey an  intent  of  the  legislature  to  per- 
mit a  husband  or  a  wife  to  become  a 
witness  in  an  action  in  which  they  are 
opposing  jiarties  (Minier  v.  Minier,  4 
Lansing,  421),  it  will  be  found,  I 
think,  that  the  second  and  third  sec- 
tions disclose  that  intention  more  com- 
pletely." Folger,  J.,  Southwick  v. 
Southwick,  49  N.  Y.  513, 

The  Code,  §  1710,  cl.  7,  is  as  fol- 
lows :  — 

"  A  husband  cannot  be  examined 
for  or  against  his  wife  without  her 
consent,  nor  a  wife  for  or  against  her 
husband  without  his  consent,  nor  can 
either,  during  the  marriage,  or  after- 
wards, be,  without  the  consent  of  the 
other,  examined  as  to  any  communi- 
cation made  by  one  to  the  other  dur- 
ing the  marriage.  But  this  exception 
does  not  apply  to  a  civil  action  or  pro- 
ceeding by  one  against  the  other,  nor 
to  a  criminal  action  or  proceeding  for 


CHAP.  VIIL]  witnesses  :    HUSBAND   AND   WIFE. 


[§  432. 


be  called  first  would   preclude  the  other  from  being  examined. 
Hence  either  party  to  the  marriage  relation  is  permitted  to  con- 


a  crime  committed  by  one  against  the 
other." 

In  Tilton  v.  Beecher  (Abbott's  Rep. 
ii.  48  et  seq.),  Mr.  Tilton,  the  plain- 
tiff (the  suit  beintr  against  Mr.  Beecher 
for  damages  for  criminal  conversation 
with  the  plaintiff's  wife),  was  offered 
as  a  witness  to  prove  his  wife's  adul- 
tery. This  was  objected  to  by  the 
defendant's  counsel,  who,  after  citing 
a  series  of  common  law  authorities, 
relied  on  Chamberlain  v.  People,  23 
N.  Y.  88;  Dann  v.  Kingdom,  1  N.  Y. 
Sup.  Ct.  492;  Lucas  v.  Brooks,  18 
WaU.  452;  Rideout's  Trusts,  L.  R.  10 
Eq.  44.  In  behalf  of  the  plaintiff  it 
was  argued  that  his  competency,  for 
this  purpose,  was  established  by  the 
statute  of  1867.  To  this  effect  were 
cited  :  Potter  v.  Marsh,  30  Barb.  506; 
S.  C.  24  How.  Pr.  610,  note;  Wehr- 
kamp  V.  Willett,  4  Abb.  App.  548,  559; 
Potter  V.  Chamberlain,  23  N.  Y.  85; 
White  V.  Staffonl,  35  Barb.  419;  Card 
V.  Card,  39  jST.  Y.  317;  Matteson  v. 
R.  R.  62  Barb.  364  ;  S.  C.  35  N.  Y. 
487;  Petrie  v.  Howe,  4  N.  Y.  Sup.  Ct. 
85.  The  court  (p.  116)  held  that  the 
plaintiff  was  entitled  to  testify  as  a 
witness,  but  not  as  to  confidential  com- 
munications from  his  wife. 

In  Dickerman  r.  Graves,  C  Cush. 
308,  a  wife,  after  a  divorce  from  her 
husband,  was  held  a  competent  wit- 
ness for  him  to  prove  the  fact  of  adul- 
ter)' in  a  suit  by  him  against  the  al- 
leged adulterer. 

In  Pennsylvania,  under  the  Act  of 
April  15,  1869,  a  wife  may  be  called 
by  her  husband  as  a  witness,  notwith- 
standing she  may  be  compelled,  on 
cross-examination,  to  give  evidence 
against  him;  the  act  provides  for  the 
competency  of  the  witness,  not  for 
the  effect  of  her  testimony.  Ballan- 
tine  V.  White,  7  7  Penn.  St.  20. 


"  The  third  assignment  of  error  is 
that  the  court  erred  in  allowing  the 
wife  of  the  plaintiff  to  testify  for  him. 
But  the  language  of  the  Act  of  April 
15,  1869,  is  very  explicit,  that  neither 
interest  nor  policy  of  law  shall  ex^ 
elude  a  party  or  person  from  being  a 
witness  in  any  civil  proceeding.  And 
the  proviso  only  excepts  the  case  of 
husband  and  wife  testifying  against 
each  other.  It  is  argued,  as  I  under- 
stand, that,  as  the  wife  must  be  sub- 
jected to  cross-examination,  she  may 
thereby  be  compelled  to  give  testi- 
mony against  her  husband.  But  so 
may  her  testimony  in  chief  be  when 
offered  in  behalf  of  her  husband.  He 
may  have  utterly  misapprehended  the 
effect  of  it,  or,  indeed,  may  have  been 
mistaken  as  to  what  it  would  be.  The 
act  is  providing  for  the  competency 
of  the  witness  for  the  party  for  whom 
she  is  offered,  not  as  to  the  eirect  of 
the  testimony.  She  is  offered  by  her 
husband  on  his  behalf.  When  ad- 
mitted, as  by  the  act  she  must  be,  her 
husband  must  take  all  the  risks  of 
what  her  evidence  will  be,  whether 
upon  examination  in  chief  or  cross- 
examination."  Sharswood,  J.,  Bal- 
lentine  v.  White,  77  Penn.  St.  25. 

In  the  same  state,  in  an  action 
against  husband  and  wife  on  a  mort-  • 
gage  of  the  wife's  property,  where  .she 
died  before  trial,  and  her  administra- 
tor was  substituted  of  record,  the 
judge  excluded  the  plaintiff  ns  a  wit- 
ness, but  permitted  the  husbantl  to 
testify.  It  was  held  by  the  supremo 
court  that  the  husband  also  should 
have  been  exeludeil.  Crouso  v.  Sta- 
ley,  3  Weekly  Notes,  83. 

In  Ohio,  under  the  amenilatory  -\ct 
of  April  18,  1870  (67  Ohio  L.  113), 
husband  and  wife  arc  competent  wit- 
nesses for  and  against  each  other,  ex- 

3Uo 


§  433.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


tnulict,  even  to  the  extent  of  discrediting,  the  other  party  when 
the  two  lire  examined  in  one  case.^  Whether  eitlier  husband  or 
wife  can  be  permitted,  in  a  collateral  procedure,  to  charge  the 
other  with  a  criminal  offence,  has  been  doubted.  In  England,  it 
was  at  one  time  held  that  no  such  testimony  could  be  received,^ 
and  so  has  it  frequently  been  ruled  in  this  country.-^  But  it  is 
more  reasonable  to  admit  such  testimony  in  all  cases  where  it 
cannot  be  used  as  an  instrument  of  future  prosecution,  provided 
the  witness  be  not  compelled  to  testify.* 

§  433.  It  has  been  said  that  adultery  in  a  divorce  suit  must  be 
proved  beyond  reasonable  doubt.^  But  this  conflicts 
with  the  conclusions  hereafter  reached,^  and  would  pro- 
duce much  confusion  in  cases  in  which  adultery  is 
chai'ged  on  both  sides.'^     But  it  is  only  with  reluctance 


In  divorce 
cases  testi- 
mony to  be 
carefully 
weighed. 


cept  as  to  communications  made  by 
one  to  the  other,  and  acts  done  by  one 
in  the  presence  of  the  other  during 
coverture,  and  not  in  the  known  pres- 
ence of  a  third  person. 

The  act  is  held  to  be  applicable  to 
cases  pending  and  causes  of  action 
existing  at  the  time  of  its  passage, 
notwithstanding  the  provisions  of  the 
Act  of  February  19,  186G  (S.  &  S.  1), 
declaring  the  effect  of  repeals  and 
amendments. 

It  has  been  further  ruled  that  evi- 
dence that  a  tliird  person  was  present, 
and  known  to  be  present,  at  the  time 
of  making  such  communications,  or  do- 
ing such  acts,  is  for  the  court  and  not 
for  the  jury,  and,  on  error,  will  be  pre- 
sumed to  have  been  given  to  the  court, 
unless  the  contrary  appears.  West- 
erman  v.  Wcsterman,  25  Ohio  St.  500. 

1  Supra,  §  425  ;  Staplieton  i;.  Crofts, 
18  Q.  B.  368;  Annesley  v.  Anglesea, 
17  How.  St.Tr.  127G;  R.  v.  All  Saints, 
6  M.  &  S.  194  ;  R.  v.  Bathwick,  2  B. 
&  A.  639  ;  Stein  v.  Bowman,  13  Pet. 
209;  State  v.  Marwin,  35  N.  H.  22; 
Fitch  V.  Hill,  11  Mass.  286  ;  Roy. 
Ins.  Co.  V.  Noble,  5  Abb.  Pr.  (N.  S.) 
55;  Ware  v.  State,  35  N.  J.  553; 
State  V.  Dudley,  7  Wise.  664.  See, 
396 


however,  contra,  Roach  v.  State,  41 
Tex.  261  ;  Keaton  v.  McGwier,  24 
Ga.  217. 

2  R.  V.  Clivinger,  2  Durn.  &  East, 
263. 

3  State  V.  Welsh,  26  Me.  30;  Com. 
V.  Sparks,  7  Allen,  534;  State  v.  Gard- 
ner, 1  Root,  485  ;  State  v.  Wilson, 
31  N.  J.  77  ;  State  v.  Pettaway,  3 
Hawks,  623  ;  People  v.  Horton,  4 
Mich.  87.  See  R.  v.  Williams,  8  C. 
&  P.  289. 

4  R.  V.  Bathwick,  2  B.  &  Ad.  639  ; 
R.  V.  All  Saints,  6  M.  &  S.  194  ;  R.  v. 
Halliday,  8  Cox,  298;  State  v.  Briggs, 
9  R.  I.  361 ;  Petrie  v.  Howe,  4  N.  Y. 
Sup.  Ct.  85;  Tilton  v.  Beecher,  Ab- 
bott's Rep.  ii.  116.  See  Phillipp's 
Ev.  i.  84  (4th  Am.  ed);  Com.?;.  Reid, 
8  Phli.  R.  609  ;  State  v.  Dudley,  7 
Wise.  664.     See  supra,  §  425. 

^  Berckmans  v.  Berckmans,  2  C.  E. 
Green,  453. 

6  See  infra,  §  1245;  and  see  Bishop 
Mar.  &  Div.  §  278. 

"^  See  supra,  §  414  ;  Foss  v.  Foss, 
12  Allen,  26  ;  Thayer  v.  Thayer,  101 
Mass.  Ill  ;  Anable  v.  Anable,  24 
How.  (N.  Y.)  Pr.  92 ;  Van  Cort  v. 
Van  Cort,  4  Edw.  (N.  Y.)  621  ;  Riv- 
enburgh  v.  Rivenburgh,  47  Barb.  419; 


CHAP.  VIII.]  WITNESSES:    EXPERTS.  [§434. 

that  courts  will  grant  divorces  on  the  testimony  of  the  parties ; 
and  at  least  some  corroborative  proof  will  be  required  when  the 
nature  of  the  case  permits. ^  It  should  also  be  remembered  that 
a  proceeding  for  divorce  is  in  many  respects  a  criminal  procedure  ; 
and  that  it  is  open  to  grave  question  whether,  as  such,  eitlier 
husband  or  wife  is  admissible  to  prove  each  other's  adultery,  in 
those  states  where  adultery  is  a  cinminal  offence.^  As  to  non- 
access,  the  question  of  privilege  will  be  hereafter  discussed.^ 

VI.   DISTINCTIVE  RULES  AS  TO  EXPERTS. 

§  434.  An  expert  has  been  defined  to  be  a  witness  who  testi- 
fies as  to  conclusions  from  facts,  while  an  ordinary  wit-  Expert  la 
ness  testifies  only  as  to  facts.  This  definition,  however,  teliu'*^- as° 
is  not  sufficiently  exact.  Few  witnesses,  called  to  de-  specialist, 
tail  facts,  reproduce  such  facts  as  they  really  exist.  Apart  from 
the  psychological  question,  whether  what  we  see  is  perceived  or 
is  inferred  by  us,  most  acts  as  to  which  we  testify  are  necessarily 
inferred,  not  actually  witnessed.*  I  hear  the  report  of  a  gun, 
for  instance  ;  I  notice  that  the  gun  is  aimed  at  a  particular  bird 
by  a  sportsman,  and  I  see  the  bird  fall ;  I  infer  that  the  sports- 
man killed  the  bird,  though  I  did  not  see  the  shot  as  it  passed 
through  the  air  and  struck.  Identity,  in  this  view,  is  always  a 
matter  of  inference.  Many  witnesses,  in  the  Tichborne  cases, 
swore  to  the  identity,  many  others  to  the  non-identity,  of  the 
claimant  with  Roger  Tichborne  ;  but  all,  whether  for  or  against 
such  identity,  showed,  on  their  examination,  that  what  they 
swore  to  was  not  a  fact,  but  a  conclusion  from  facts.  We  must 
therefore  penetrate  further  if  we  seek  to  distinguish  between  the 
expert  and  the  non-expert.     And  the  true    distinction  is  tliis : 

Lincoln  v.   Lincoln,  G  Robt.   (N.  Y.)  bins,     100    Mass.     150  ;     Thayer    v. 

525  ;  Mayer  v.  Mayer,  21  N.  J.  Eq.  Thayer,  101  Mass.  Ill  ;  Stevenson  v. 

251  ;  Winter  v.  Winter,  7   Phila.   R.  Stevenson,    7    Phil.  38G  ;    IJronson  v. 

369;  Bronson  v.  Bronson,  8  Phil.  R.  Bronson,  8  Phil.  K.  261;  Tate  v.  Tate, 

261.     As  to  proof  of  adultery  in  di-  2G  N.  J.  Eq.  55;  Black  i'.  Black,  Ibid, 

vorce  cases,   sec  particularly  infra,  §  431  ;    Hays  v.    Hay.s,   ID    Wise.   182  ; 

483.  Fugatc  v.  Pierce,  19  Mo.  4  16. 

^  See   cases   just  cited;    and    see,  -  Supra,  §  432;  Pans.<ct  r.  Faussctt, 

also,  U.  V.  J.,   L.  R.  1   P.  &  M.  460  ;  7  Notes   of  Ecc.   Cases,  72;  King  r. 

T.  V.  D.,  L.  R.  1  P.  &  M.  127  ;  Scott  Khv',  2  Robt.  Ecc.  153. 

V.  Scott,  3   Sw.  &  Tr.    319  ;  Hart  r.  «  Infra,  §  608. 

Hart,  3  Spinks,  196;  Robbins  v.  Rob-  ■•  See  supra,  §  15. 

397 


§  435.] 


THE   LAW    OF   EVIDENCE. 


[book  II. 


that  the  non-expert  testifies  as  to  conclusions  which  may  be  ver- 
ified by  the  adjudicating  tribunal;  the  expert  to  conclusions 
which  cannot  be  so  verified.  The  non-expert  gives  the  results 
of  a  process  of  reasoning  familiar  to  every  day  life ;  the  expert 
gives  the  results  of  a  process  of  reasoning  which  can  be  mas- 
tered only  by  special  scientists.^ 

§  435.  We  haX'e   already  seen   that  foreign  laws  are  to  be 

proved  by  experts. ^     The  same  right  may  be  extended 
Specialists     ^  .  ,  . 

maybe  ex-   to  laws  as  to  whicli  the  judex  fori  cannot  be  familiar 

to  laws  without  proof.  Thus  it  has  been  held,  that  the  opinion 
thllex  ^°  of  experienced  military  ofiicers  may  be  taken  as  to  a 
jvri.  point  of  military  practice.^     So  in  an  action  for  libel 

arising  out  of  a  race-horse  transaction,  it  was  held  by  Lord  Den- 
man,  that  a  member  of  the  jockey  club  might  be  asked,  as  a 
witness,  whether  he  did  not  consider  a  certain  course  of  conduct 
to  be  dishonorable.*      If  a  disputed   question  of  navigation,  to 


^  See  Strippelmann,  die  Sachver- 
standigen,  Kassel,  1858;  Endemann, 
241.  When  the  examination  testified 
to  may  be  made  alike  by  specialist 
and  layman  (e.  g.  opinion  whether 
fresh  stains  are  blood),  then  the  dis- 
tinction between  the  two  kinds  of  tes- 
timony is  quantitative  and  not  quali- 
tative. People  V.  Fernandez,  35  N. 
Y.  49.     See  infra,  §  436. 

By  the  Roman  law,  experts  {artis 
periti)  could  be  called  by  the  judex,  at 
his  own  discretion  (when  not  already 
called  by  the  parties),  in  order  to  ac- 
quaint himself  with  physical  laws  or 
phenomena  of  which  he  was  not  per- 
sonally cognizant.  See  L.  8,  §  1 ,  x.  1 ; 
L.  3,  §  4,  xi.  6;  L.  3,  Cod.  fin.  reg.  iii. 
39.  See  Endemann,  243.  The  canon 
law  appears  to  have  adopted  the  same 
practice.     See  Strippelmann,  §  7. 

The  Italian  glossarists,  in  carrying 
out  their  maxim  that  the  court  is  to 
determine  solely  secundum  allegata  et 
probata,  limited  the  right  of  the  judge 
to  introduce,  to  extend  his  informa- 
tion as  to  the  case,  those  who  de  peri- 
tia  artis  examinantur.     This  right  he 

898 


could  only  exercise  when  necessary  to 
supplement  the  action  of  the  parties. 
Each  party,  by  this  system,  calls  ex- 
perts in  the  first  instance;  the  value 
of  expert  testimony  being  based  on  the 
rule  that  medico  artijici,  etc.,  unicuique 
in  sua  arte  credendwn  est.  Durant,  I. 
c.  But  it  is  in  the  power  of  the 
court  to  limit  the  number  of  experts, 
and  even  to  select  two  or  three  from 
those  proposed  by  the  parties,  exclud- 
ing the  others.  Bartol.  in  L.  1,  pr. 
de  ventr.  insp.  No.  5 ;  Bald,  in  L.  20, 
Cod.  de  fide  inst.  The  rule  is  for  the 
expert  to  be  sworn,  though  only  de 
credulitate.  Masc.  I.  c. ;  Menoch.  de 
arb.  jud.  ii.  114,  No.  28;  Endemann, 
244. 

An  expert  may  not  only  say  that  he 
formed  an  opinion,  but  that  he  acted 
upon  that  opinion,  and  his  acting  upon 
it  is  a  strong  corroboration  of  its  truth. 
Stephenson  v.  River  Tyne  Commis- 
sioners, 17  W.  R.  590. 

2  Supra,  §  305. 

8  Bradley  v.  Arthur,  4  B.  &  C.  295. 

*  Greville  r.  Chapman,  5  Q.  B.  731. 


CHAP,  vm.] 


WITNESSES:   EXPERTS. 


[§  -136. 


take  another  illustration,  should  arise,  experts  may  be  examined 
to  prove  a  general  maritime  usage,  supplementary  to  and  not 
conflicting  with  the  law  of  which  the  court  takes  judicial  notice.^ 
But  as  to  laws  of  which  the  courts  take  judicial  notice,  experts 
cannot  be  examined.^ 

§  436.  We  will  elsewhere  see,^  that  ordinarily  a  witness  can- 
not give  his  conclusions  from  facts,  but  must  state  the  qj^  matters 
facts,  leaving  the  drawing  of  conclusions  to  the  court  and   non-profes- 

'  °  °     _  _  sional  or  of 

jury.     The  same  rule  applies  to  experts,  in  all  matters   common 

,.,,,  •     -I    •  re  •  observa- 

as  to  which  the  lay  mind  is  capable  oi  lormmg  a  con-   tion,  ex- 
clusion ;  and  as  to  all  matters  of  free  logical  inference   not  givT" 
from  scientific  facts.*     Thus  an  expert  cannot  be  asked   ^'P""'*"^. 
whether  a  railroad  train  stopped  time  enough  for  the  passengers 
to  get  off,  or  whether  it  is  safer  to  discharge  passengers  at  a  sta- 
tion or  before  reaching  it,^  or  whether  it  was  prudent  to  blow  a 
steam-whistle  at  a  particular  time.^     So  a  practising  physician 
cannot  be  examined  as  to  the  amount  of  damages  resulting  to 
one  physician  from  the  violation  of  a  contract  by  another  not  to 
practise  in  a  particular  district.'^     So  a  farmer  cannot  be  exam- 
ined as  to  the  sufficiency  of  bars  to  restrain  cattle  ;^  nor  can  a 
person  conversant  with  real  estate  be  asked  as  to  the  peculiar 
liability  of  unoccupied  buildings  to  fire.^     So  a  physician  cannot 


1  City  of  Washington,  98  U.  S.  (2 
Otto)  31. 

2  The  Clement,  2  Curt.  363, 
8  Infra,  §  509. 

*  Winans  v.  R.  R.  21  How.  88;  Con- 
cord R.  R.  v.  Greely,  23  N.  H.  237; 
Page  V.  Parker,  40  N.  H.  47;  Perkins 
V.  Ins.  Co.  10  Gray,  312;  Boston  v. 
R.  R.  3  Allen,  142;  Hovey  v.  Sawyer, 
5  Allen,  5.')4;  White  v.  Ballon,  8  Al- 
len, 408;  Luce  v.  Ins.  Co.  10.5  Mass. 
299;  Iliggins  v.  Dewey,  107  Mass.  494; 
People  V.  Bodine,  1  Denio,  281  ;  Bris- 
tol V.  Tracy,  21  Barb.  236;  Kennedy 
V.  People,  .')  Abbott  (N.  S.),  147;  Wil- 
son V.  People,  2  Parker  C.  R.  619; 
Rawls  V.  Ins.  Co.  36  Barb.  357;  27  N. 
Y.  282;  Cook  v.  State,  4  Zabr.  843; 
Moore  v.  State,  17  Oh.  St.  521  ;  Linn 
V.  Sigsbce,  67  111.  75;  Chicago  R. 
R.  V.  Moffitt,  75  111.  524  ;  Chicago  v. 


McGiven,  78  111.  347;  Hopkins  v.  R. 
R.  78  111.  32  ;  Pelamourges  v.  Clark,  9 
Iowa,  1 ;  Bills  v.  Ottuniwa,  35  Iowa, 
107;  Hamilton  v.  R.  R.  36  Iowa,  81; 
Muldowney  v.  R.  R.  39  Iowa,  615; 
Newmark  v\  Ins.  Co.  30  Mo.  160;  Ro- 
senheim V.  Ins.  Co.  33  Mo.  230.  See 
Com.  V.  Piper,  120  Mass.  185. 

6  Keller  v.  R.  R.  2  Abb.  (N.  Y.) 
App.  480. 

6  Hill  17.  R.  R.  55  Me.  438. 

'  Linn  v.  Sigsbee,  67  III.  75. 

8  Enrinht  v.  11.  R.  33  Cal.  230. 

8  Miiloy  r.  Ins.  Co.  2  Gray,  541.  See 
Lyman  r.  Ins.  Co.  14  Allen,  329. 

In  Campbell  v.  Richards,  5  B.  & 
Ad.  846,  Lord  Denman,  C.  J.,  said: 
"  Witnesses  conversant  in  a  particular 
trade  may  be  allowed  to  speak  to  a 
prevailing  practice  in  that  tr.ade  ; 
scientific  persons  may  give  their  opiu- 

399 


§  436.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


be  asked  as  an  expert  whether  a  rape  could  have  been  committed 
in  a  particuUir  way,  when  the  question  is  one  which  it  required 
no  professional  knowledge  to  answer ;  ^  nor  as  to  the  effect  on  the 
health  of  an  habitual  use  of  intoxicating  liquor.^  So  it  has  been 
held,  that  the  course  which  the  owner  of  a  damaged  steamer 
ought,  as  a  prudent  man,  to  take  as  to  laying  up  for  examina- 
tion and  repairs  on  discovering  defects  in  the  engine  which  had 
been  put  into  her  under  such  a  contract,  is  not  a  question  of  sci- 
ence calling  for  the  opinion  of  an  expert.^  So  in  an  action  for 
injuries  to  plaintiff  caused  by  the  upsetting  of  defendants'  stage- 
coach in  which  plaintiff  was  a  passenger,  where  a  witness  for  the 
plaintiff  was  asked,  on  his  direct  examination,  to  "  state,  if  he 
knew,  from  his  knowledge  of  the  condition  of  the  road  at  that 
time,  Avhat  would  be  the  chance  for  a  stage-coach  to  tip  up, 
being  driven  by  an  ordinarily  careful,  prudent  driver ;  "  it  was 
held  that  the  question  was  inadmissible,  as  calling  for  the  wit- 
ness's opinion  as  to  a  matter  not  involving  professional  skill, 
and  concerning  which  the  jury  were  to  judge  for  themselves 
from  the  facts  in  evidence.* 


ions  on  matters  of  science;  but  wit- 
nesses are  not  receivable  to  state  their 
views  on  matters  of  legal  or  moral  ob- 
ligation, nor  on  the  manner  in  which 
others  would  probably  be  influenced 
if  the  parties  had  acted  in  one  way 
rather  than  in  another.  In  the  great 
case  of  Carter  v.  Boehm,  a  broker,  who 
was  called  as  a  witness  for  the  plain- 
tiff, stated  on  cross-examination,  that 
in  liis  opinion  certain  letters  ought 
to  have  been  disclosed,  and  that  if 
they  had,  the  policy  would  not  have 
been  underwritten  j^  the  jury,  liowever, 
found,  against  the  witness's  opinion, 
a  verdict  for  the  plaintiff.  When  his 
opinion  was  pressed,  as  aground  for  a 
new  trial,  Lord  Mansfield,  in  the  name 
of  the  whole  court,  declared  that  the 
jury  ought  not  to  pay  the  least  regard 
to  it,  because  it  was  mere  opinion  and 
not  evidence.  The  same  doctrine  is 
laid  down  in  a  case  of  Durrell  r.  Be- 
derly,  by  Gibbs,  C.  J.,  though  he  re- 

400 


ceived  the  evidence  on  great  pressure. 
He  said  :  "  The  opinion  of  the  under- 
writers on  the  materiality  of  facts  and 
the  effect  they  would  have  had  upon 
the  premium  is  not  adrjissible  in  evi- 
dence. Lord  Mansfield  and  Lord 
Kenyon  discountenanced  this  evidence 
of  opinion,  and  I  think  it  ought  not  to 
be  received.  It  is  the  province  of  a 
jury,  and  not  of  individual  underwrit- 
ers, to  decide  that  facts  ought  to  be 
communicated.  It  is  not  a  question 
of  science,  in  which  scientific  men  will 
mostly  think  alike,  but  a  question  of 
opinion,  liable  to  be  governed  by  fan- 
cy, and  in  which  the  diversity  might 
be  endless.  Such  evidence  leads  to 
nothing  satisfactory,  and  ought  to  be 
rejected."  Powell's  Evidence,  4th  ed. 
103. 

1  Cook  V.  State,  24  N.  J.  L.  843. 

2  Rawlsv.  Ins.  Co.  27  N.  Y.  282. 
8  Clark  V.  Detroit,  32  Mich.  348. 

<  Oleson  V.  Tolford,  37  Wise.  327. 


CHAP.  VIII.] 


WITNESSES:   EXPERTS. 


[§  437. 


•''^   §  437.  We    have    seen    that  where  conckisions  depend  upon 

facts  whose   evidential  weight  can   only  be  determined    „„    , 

/.        •!•  -1  -1  -1  Whether 

by    those   familiar   with   a   particular   specialty,    then    or  no  con- 

these  conclusions  may  be  given  by  experts  in  such  spe-  longs  to  a 
cialty.  But  who  is  to  decide  as  to  what  knowledge  is  L^forMj*^ 
special  and  what  is  ordinary,  —  as  to  whether  the  con-  *^°"'''" 
elusion  is  one  a  layman  may  safely  reach,  or  one  which  must  be 
reserved  for  an  expert  ?  Necessarily  the  line  in  this  respect  must 
be  laid  down  by  the  judex  fori.  Where  it  is  to  be  laid  must  de- 
pend, to  some  extent,  upon  the  degree  with  which  the  jury  and 
judge  may  be  familiar  with  the  specialty,  which  of  course  de- 
pends upon  varying  conditions.  Even  where  the  conditions  are 
in  a  measure  constant,  the  courts  have  found  it  difficult  to  reach 
a  consistent  rule  as  to  certain  specialties.  Thus  sometimes  we 
are  told  that  the  comparison  of  hands  is  to  be  left  to  experts, 
sometimes  to  juries.^  In  England," the  queen's  bench  has  deter- 
mined that  insurance  brokers  cannot  give  their  opinions  as  to 
the  degree  of  diligence  requisite  in  obeying  instructions  as  to 
policies,^  while  the  common  pleas  has  virtually  ruled  the  con- 
trary.^ In  this  country,  the  practice  is  to  confine  experts,  as 
such,  to  opinions  connected  with  their  specialty.*  Whether,  as 
to  the  particular  question,  the  witness  is  an  expert,  the  court  is 
to  determine,  and  on  this  point  the  witness  may  be  examined, 
and  evidence  may  be  received  aliunde.^ 


1 

2 

840 


See  infra,  §§  712,  720. 

Campbell  v.  llickards,  5  B.  &  Ad. 


8  Chapman  v.  Walton,  10  Bing.  57. 

*  See§33G. 

6  Davis  V.  State,  38  Md.  15;  Tome 
V.  R.  R.  39  Md.  3G;  Mendum  v.  Com. 
6  Rand.  704  ;  Bills  v.  Ottumwa,  35 
Iowa,  107  ;  Brabbits  v.  R.  R.  38 
Wise.  290  ;  Caleb  v.  State,  39  Miss. 
721.     Infra,  §§  6GG-721. 

"  The  first  three  assignments  of 
error  relate  to  the  admission  of  the 
opinion  of  witnesses  produced  as  ex- 
perts. It  is  objected  that  they  were 
not  first  shown  to  be  such.  This  is  a 
preliminary  (juestion  to  be  determined 
by  the  court  in  the  first  instance.  If 
VOL.  I.  2G 


the  court  shall  think  they  are  primcL 
facie  qualified,  it  will  then  be  for  the 
jury  to  decide  whether  any,  and  if 
any,  what  weight  is  to  be  given  to 
their  testimony.  It  is  a  matter  very 
much  within  the  discretion  of  the 
court  below,  and  if  it  appears  that  the 
witnesses  offered  had  any  claim  to  the 
character  of"  experts,  the  court  will 
not  reverse  on  the  ground  that  their 
experience  was  not  sulliciently  spe- 
cial. The  question  in  the  case  now 
before  us  related  to  tlie  proper  mode 
and  time  of  changing  the  fastening  of 
boats  in  a  tow,  when  for  any  reason  it 
became  necessary.  It  cannot  be  said 
that  those  frequently  on  board  of  such, 
boats,  while  being  towed,  and  inter- 
401 


§  438.] 


THE   LAW    OF   EVIDENCE. 


[book  n. 


Expert 
may  ho.  ex- 
amined as 
to  scientific 
authorities. 


§  438.  Whether  scientific  works  are  independently  admissible 
in  evidence  is  elsewhere  considered.^  Even  by  those 
courts  who  have  been  most  resolute  in  excluding  such 
works  when  offered  substantively,  it  is  agreed  that  an 
expert  may  show  that  his  views  are  sustained  by  stand- 
ard authorities  in  his  profession.^  He  cannot,  however,  be  per- 
mitted to  read,  as  independent  proof,  extracts  from  books  in  his 
department,^  though  he  may  refresh  his  memory,  when  giving 
the  conclusions  arrived  at  in  his  specialty,  by  turning  to  standard 


ested  either  as  captains  or  owners, 
have  not  experience  in  such  matters, 
though  it  may  not  be  equal  to  those 
on  board  the  tugs.  Men  who  follow 
the  water  for  a  living  are  generally,  I 
think,  close  observers;  and  this  results 
from  the  monotony  of  their  employ- 
ment in  general.  Whenever  anything 
unusual  occurs  they  take  accurate  no- 
tice of  it.  Captains  of  boats  in  a  tow 
stand  at  their  helms  all  day,  or  lounge 
about  the  deck,  with  nothing  to  do  or 
think  about  ;  hence  they  are  likely  to 
be  keen  observers  of  all  the  circum- 
stances occurring  in  the  course  of  a 
trip.  Such  men  form  their  opinions 
from  facts  within  their  own  experi- 
ence, and  not  from  theory  or  abstract 
reasoning.  They  come,  therefore, 
even  more  properly  within  the  defini- 
tion of  experts  than  men  of  mere 
science."  Sharswood,  J.,  Delaware  & 
Chesapeake  Steam  Towboat  Co.  v. 
Starrs,  69  Penn.  St.  41. 

"It  is  next  urged  that  the  court 
erred  in  admitting  the  testimony  of 
witnesses  to  prove  that  the  obstruc- 
tions on  the  bridge  were  of  such  a 
character  as  would  be  likely  to  frighten 
horses  of  ordinary  gentleness.  The 
witnesses  stated  that  they  had  seen 
and  knew  the  character  of  the  ob- 
structions, their  size  and  appearance; 
that  the  witnesses,  each,  were  accus- 
tomed to  handling  and  driving  horses, 
and  knew  their  habits,  &c.,  and  that 
these  obstructions  were  of  such  a  char- 

402 


acter  as  would  be  likely  to  frighten 
horses  of  ordinary  gentleness.  We 
think  this  evidence  was  properly  ad- 
mitted. The  nature,  habits,  and  pe- 
culiarities of  horses  are  not  known  to 
all  men.  Persons  who  are  in  the  habit 
of  handling  and  driving  horses,  from 
this  experience  learn  their  habits,  nat- 
ure, &c.,  and  are  therefore  better  able 
to  state  the  probable  conduct  of  a 
horse  under  a  given  state  of  circum- 
stances, in  which  they  have,  in  their 
experience,  witnessed  their  conduct 
under  similar  circumstances,  than  per- 
sons having  no  experience  whatever 
with  horses.  So  in  respect  to  the  age 
of  a  horse,  experienced  persons  are 
able  to  tell,  from  an  examination  of 
the  mouth  and  other  signs,  how  old 
the  animal  is,  while  inexperienced 
persons  would  be  utterly  unable  to 
even  approximate  to  the  age  of  the 
animal.  We  are  of  opinion,  there- 
fore, that  the  case  does  not  fall  within 
the  rule  announced  in  Muldowney  v. 
The  111.  Cen.  R'y.  Co.  36  Iowa,  462, 
and  that  there  was  no  error  in  the  ad- 
mission of  evidence."  Miller,  Ch.  J., 
Morelaud  v.  Mitchell  County,  40  Iowa, 
394;  S.  P.,  Clinton  v.  Howard,  42 
Conn.  295  ;  and  see  infra,  §  1295. 

1  See§§  665-67. 

2  Collier  i-.  Simpson,  5  C.  &  P.  73 ; 
Cocks  V.  Purday,  2  C.  &  K.  290. 

8  Washburn  v.  Cuddihy,  8  Gray, 
430;  Com.  v.  Stm-tivant,  117  Mass. 
122. 


CHAP.  VIII.] 


WITNESSES:   EXPERTS. 


[§  439. 


works.^     The  witness,  having  cited  scientific  authorities,  it  has 
been  held  they  may  be  put  in  evidence  to  discredit  him.^ 

§  439.  Certainly  a   person   having  a  mere  vague   superficial 
knowledge  of  a  profession  ought  not  to  be  permitted   An  expert 
to  lay  down  its  laws.     To  entitle  him  to  answer  ques-   "pefia'iKr 
tions  as  a  professed  expert,  he  must,  in  the  opinion  of   skilled. 
the  court,  have  special  practical  acquaintance  with  the  immedi- 
ate line  of  inquh'y.^     Yet  he  need  not  be  thoroughly  acquainted 
with  the  differentia  of  the  specific  specialty  under  consideration.* 
If  this  were  necessary,  few  experts  could  be  admitted  to  tes- 
tify ;  certainly  no  courts  could  be  found  capable  of  determining 
whether  such  experts  were  competent.     A  general  knowledge  of 
the  department  to  which  the  specialty  belongs  would  seem  to  be 
enough.     Thus  a  physician,  not  an  oculist,  has  been  permitted 
to  testify  as  to  injuries  of  the  eye  ;  ^  physicians,  not  veterinary 
surgeons,  as  to  diseases  of  mules ;  ^  other  persons,  not  veterinary 


1  See  infra,  §§  665-67  ;  Darby  v. 
Ousley,  1  H.  &  N.  1  ;  Pierson  i;. 
Hoag,  47  Barb.  243;  Hornblower,  C. 
J.,  in  1  Zabr.  196;  Cory  v,  Silcox,  6 
Ind.  39  ;  Harvey  v.  State,  40  Ind. 
516;  Bowman  v.  Torr,  3  Iowa,  571; 
Ripon  V.  Bittel,  30  Wise.  614;  Lun- 
ing  V.  State,  1  Chandl.  (Wise.)  264 ; 
State  V.  Terrell,  12  Rieh.  (S.  C.)  321; 
Merkle  v.  State,  37  Ala.  139.  See 
Melvin  v.  Easley,  1  Jones  (N.  C)  L. 
386. 

2  Ripon  V.  Bittel,  30  Wise.  614. 

8  Berry  v.  Reed,  53  Me.  487;  Woods 
V.  Allen,  18  N.  H.  28;  Boardman  v. 
Woodman,  47  N,  H.  120;  State  v. 
Ward,  39  Vt.  225;  Com.  v.  Rich,  14 
Gray,  335 ;  Rich  v.  Jones,  9  Cusli. 
329;  Rogers  v.  Ritter,  12  Wall.  317; 
Benkard  v.  Babcock,  2  Robt.  (N.  Y.) 
175;  Thomas  r.  Kenyon,  1  Daly,  132; 
Donaldson  v.  R.  R.  18  Iowa,  280  ; 
Morissey  v.  People,  11  Mich.  327; 
Graves  v.  Moses,  13  Minn.  335;  Wea- 
vers. Alabama  Co.  35  Ala.  176;  Caleb 
V.  State,  39  Miss.  722.  See,  as  giving 
a  laxer  view.  Dole  v.  Johnson,  50 
N.  H.  452;  Castner  v.  Sliker,  33  N.  J. 


L.  95,  507;  Davis  v.  State,  35  Ind. 
496;  State  v.  Hinkle,  6  Iowa,  380  ; 
State  V.  Reddick,  7  Kans.  143;  Mincke 
V.  Skinner,  44  Mo.  92  ;  Wilson  v. 
State,  41  Tex.  320.  And  see  this 
point  discussed  at  large  in  Wliart.  Cr. 
Law,  7th  ed.  §§  48-9;  and  see,  also, 
infra,  §  446. 

*  State  V.  Wood,  53  N.  H.  484; 
Dole  V.  Johnson,  50  N.  H.  452  ;  Cook 
V.  Castner,  9  Cush.  266  ;  Shattuck  v. 
Train,  116  Mass.  296;  Roberts  i.  John- 
son, 58  N.  Y.  613;  Consolidated  Co. 
V.  Casliow,  41  Md.  59;  House  v.  Fort, 
4  Blackf.  293;  Washington  i-.  Cole,  6 
Ala.  212;  TuUis  v.  Kidd,  12  Ala.  6-18; 
Spiva  t'.  Stapleton,  38  Ala.  171.  But 
in  Emerson  v.  Lowell,  6  Allen,  146, 
it  was  ruled  that  a  physician  who  has 
had  no  experience  of  the  eflect  on 
health  of  breathing  illuminating  gas, 
could  not  be  examined  as  an  expert 
as  to  such  effects.  Emerson  i'.  Lowell, 
6  Allen,  146. 

6  Castner  v.  Sliker,  33  N.  J.  L.  95, 
507. 

0  Ilorton  V.  Green,  61  N.  C.  6-1. 

403 


§  441.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

surgeons,  as  to  diseases  of  animals ;  ^  a  physician,  not  making 
insanity  a  specialty,  as  to  whether  a  person  he  visits  is  insane ;  ^ 
a  witness,  not  a  chemist,  as  to  whether  certain  stains  are  appar- 
ently blood  ;  ^  a  witness,  not  a  chemist,  as  to  the  effect  of  pow- 
der, found  on  the  defendant,  in  removing  ink-marks  ;  *  a  sur- 
veyor, who  is  a  volunteer,  not  appointed  by  state  or  county,  to 
the  correctness  of  a  plat ;  °  a  person,  not  a  surgeon,  to  prove 
that  a  death  was  caused  by  wounds  ;  ^  while  a  witness  accus- 
tomed to  the  use  of  horses  may  give  his  opinion,  based  on  ex- 
perience and  observation,  as  to  whether  certain  obstacles  on  a 
road  would  cause  an  ordinarily  gentle  horse  to  shy.''^ 

§  440.  We  will  hereafter  notice,^  that  witnesses  are  ordinarily 
not  allowed  to  give  opinions  as  to  conclusions  depend- 

May  give  .  ... 

his  opiii-  ent  upon  facts  which  are  not  necessarily  involved  in 
conditions  sucli  conclusions.  An  exception  to  this  rule  is  recog- 
withlds^  nized  in  the  case  of  experts,  who  are  entitled  to  give 
specialty,  their  opinions  or  judgments  as  to  conclusions  from  facts 
within  the  range  of  their  specialties,  but  too  recondite  to  be 
properly  comprehended  and  weighed  by  ordinary  reasoners.  It 
makes  no  difference  as  to  what  is  the  specialty  with  which  the 
expert  is  conversant.  If  its  laws  are  not  familiar  to  the  ordi- 
nary business  man,  they  must  be  proved,  and  their  application 
to  the  case  in  issue  shown  by  an  expert.^ 

§  441.  The  most  common  illustration  of  the  principle  just 
Physicians  stated  is  that  of  the  physician  or  surgeon.  The  med- 
ffeons"so  ^^'^^  profession  is  a  specialty  of  vast  importance,  which 
admissible,    jjj^g  absorbed   masses  of   learning  with  which  no  lay 

1  Slater  v.  Wilcox,  57  Barb.  604;  a  rule  of  law,  but  a  large  discretion 
Johnson  v.  State,  1  Ala.  Sel.  Cas.  72.      must  be  left  in  the  trial  court.     Andre 

2  Hastings  v.  Rider,  100  Mass.  622.     v.  Hardin,  32  Mieli.  324. 

8  People  V.  Gonzales,  35  N.  Y.  49.  '  Clinton  v.  Howard,  4  2  Conn.  295; 

*  People  V.  Brotherton,  47  Cal.  388.  S.  P.,  Moreland  v.  Mitchell,  40  Iowa, 

•See  Farmer's  Bk.  u. Young,  36  Iowa,  45.  394,  quoted  supra,  §  431. 

5  Mincke  v.  Skinner,  44  Mo.  92.  »  j^f^a,  §  509. 

6  State  V.  Smith,  22  La.  An.  468.  ^  Webb  v.  R.  R.  4  Myl.  &  Cr.  120; 
Where  a  witness    has    been    ques-  McFadden    v.  Murdock,   Ir.  R.  1    C. 

tioned  to  bring  out  his  skill  as  an  ex-  L.   211  ;   Carter  v.  Boehm,  1  Smith's 

pert,  considerable  latitude  ought  to  be  L.   C.  401,  note  ;  Litchfield  i\  Taun- 

allowed  on  cross-examination  to  bring  ton   Co.    9    Allen,    181  ;    Kershaw    v. 

out  the  facts  as  to  his  competency  to  Wright,  115  Mass.  361  ;  Matteson  t". 

give  evidence  in  that  character;  yet  R.  R.  62  Barb.  364  ;  Shelton  v.  State, 

no  definite  limit  can  be  prescribed  as  34  Tex.  662,  and  cases  hereafter  cited. 

404 


CHAP.  VIII.]  WITNESSES :   EXPERTS.  [§  441. 

mind  could  become  familiar,  and  which  is  divided  not  merely 
into  a  series  of  distinct  dejDartments,  each  with  its  peculiar 
erudition  and  practice,  but  into  rival  schools,  dealing  with  par- 
ticular cases  in  modes  divergent  if  not  antagonistic.  Jurispru- 
dence does  not  say  to  either  of  these  schools,  "  You  are  right 
and  the  others  are  wrong ;  "  but  it  says  to  the  members  of 
each  school,  "  You  are  bound  to  exercise  the  skill,  and  possess 
the  preparation,  usual  to  good  practitioners  of  your  particular 
order."  ^  So  jurisprudence  does  not  say  to  a  physician  or  sur- 
geon called  to  testify  whether  a  wound  or  a  poison  was  fatal, 
"  You  must  have  a  particular  diploma,  or  belong  to  a  particular 
professional  school ;  "  but  it  says,  "  If  you  have  become  familiar 
with  such  laws  of  your  profession  as  bear  upon  this  issue,  then 
you  can  testify  how  the  issue  is  affected  by  such  laws."  ^  Hence 
physicians  generally  are  admissible  to  state  the  nature  and  ef- 
fects of  a  disease  ;  ^  the  conditions  of  gestation ;  ^  the  effects  of 
particular  poisons  on  the  human  system  ;  ^  the  effects  of  a  par- 
ticular treatment ;  ^  the  likelihood  that  death  could  be  produced 
by  a  particular  disease,'^  though  they  have  not  made  such  condi- 
tions a  specialty.^  As  to  a  specialty,  however,  entirely  out  of  his 
line,  a  physician  cannot  be  examined  as  an  expert.^  So  med- 
ical attendants,  neither  specialists  nor  family  physicians,  may 
be  examined  as  to  cases  of  insanity, ^^  though  they  may  not  be 
competent  to  answer  questions  as  to  hypothetical  cases.^^     So  a 

1  Wharton  on   Neglifjence,  §   733;  *  Barber  v.  Merriam,  11  Allen,  322. 

Corsi  V.  Maretzck,  4  E.  D.  Smith,  1.  ''  State  v.  Smith,  32  IMe.  329  ;  Wcn- 

"  Livingston's  case,  U  Grat.   592;  dell  v.  Troy,  39   Barb.  329;  Mattison 

New  Orl.  Co.  v.  Allbritton,  38  Miss.  v.  R.  R.  62  Barb.  304  ;   3.->  N.  Y.  487  ; 

242.  Anthony  i;.  Smith,  4  Bosw.  503;  Cahn 

8  Perkins  r.  R.   R.  44   N.  H.  223;  v.   Costa,   15   La.   An.   612  ;    Paty   v. 

State  V.  Powell,  2  Halst.  244;  Vanau-  Martin,  15  La.  An.  620. 

ken,  in  re,  10  N.  J.  Eq.  186;   Lush  v.  «  Dole  v.  Johnson,  50   N.  H.  452  ; 

McDaniel,   13  Ired.  L.   485;    Parker  Castner  v.    Sliker,    33    N.   J.  L.    95, 

V.  Johnson,  25  Ga.  576  ;  Hook  v.  Sto-  507. 

vail,  26  Ga.  704  ;  Bennett  i;.  Fail,  20  »  Emerson  v.  Lowell,  6  Allen,  146. 

Ala.  605  ;  Roberts  v.  Fleming,  31  Ala.  ^o  Hastings  v.  Rider,  100  Mass.  022; 

683;    Jones    v.    AVhite,    11     Humph.  Chandler  v.   Barrett,   21    La.  An.  58; 

268.  Davis   v.  State,  3')  Iiid.  490;   State   v. 

*  State  V.  Smith,  32Me.  309;  Young  Reddiek,  7  Kans.  143. 

V.  Makepeace,  103  Mass.  50.  ^^  See    fully  infra,  §  451;   Com.    i'. 

6  Stephens  v.  People,  4  Parker   C.  Rich,  14  Gray,  335. 
R.  396. 

405 


§  443.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

surgeon  is  admissible  to  prove  the  nature  of  a  wound  and  its 
probable  cause  and  effects,^  though  it  has  been  held  not  admis- 
sible for  a  surgeon  to  give  an  opinion  on  merely  speculative 
data.2  A  physician,  not  a  veterinary  surgeon,  has  been  permitted 
to  speak  as  to  the^  diseases  of  animals.^ 

§  442.  We  have  already  seen  that  foreign  laws  must  be  proved, 
And  so  of  ^^  matters  of  fact,  by  experts.*  In  other  relations,  law- 
lawyers.  ygj^.g  a^rg  admissible  for  the  purpose  of  proving  the  laws 
of  their  profession.  On  a  question  of  fees,  for  instance,  a  lawyer 
is  competent  to  prove  the  value  of  the  services  sued  for.^  So, 
also,  a  lawyer  is  competent  to  prove  the  practice  of  the  courts.^ 

§  443.  Scientists,  also,  in  their  particular  specialties,  are  ad- 
And  so  of  raissible  to  prove  the  laws  of  such  specialties.'''  Thus, 
scientists,  ichthyologists  may  be  examined  as  to  the  capacity  of 
fish  to  surmount  certain  obstructions ;  ^  botanists  and  specialists 
in  wood,  as  to  the  relations  of  different  kinds  of  woods  ;  ^  chem- 
ists and  microscopists,  as  to  whether  certain  stains  are  from 
blood, ^*^  as  to  the  effects  of  a  particular  poison, ^^  as  to  the  nat- 
ure of  ink  stains,^^  and  as  to  the  quality  of  certain  fertilizers ;  ^^ 
physicians,  with  a  general,  though  not  special  knowledge  of 
chemistry,  as  to  whether  a  particular  poison  was  found  in  the 
stomach  of  the  deceased  ;  ^^  and  a  college  graduate,  who  has  stud- 
ied chemistry  with  a  distinguished  chemist,  has  taught  chemistry 

1  Rowell  V.  Lowell,  11    Gray,  420;         ^  gee  §§  300-302. 

Linton  v.  Hurley,  14  Gray,  191;  Cora.         ^  Covey  v.  Campbell,  52  Ind.  157; 

V.  Piper,    120   Mass.   186;   Wilson   v.  Allis  v.  Day,  14  Minn.  516.     See  Ot- 

People,  4    Parker    C.   R.   619;    Gar-  tawa  w.  Parkinson,  14  Kans.  159, 
diner  v.  People,  6  Parker  C.  K.  155  ;         ^  Mowry  v.  Chase,  100  Mass.  79. 
Rumsey    v.    People,    19    N,   Y.    41  ;        ^  Page  v.  Parker,  40  N.  H.  47. 
Fort  I'.   Brown,  46  Barb,  366  ;   Cora.         8  Cottrill  v.  Myrick,  3  Fairf,  222, 
V.   Lenox,   3   Brewst.  249;   People  v.         ^  Com.  v.  Choate,  105  Mass.  451. 
Kerrains,  1    Thonip.  &  C.  333;  Davis         w  State  y.  Knights,  43  Me.  11;  Peo- 

V.  State,  38  Md.  15,  43;  State  v.  Mor-  pie  v.  Gonzales,  35  N.  Y.  49  ;   Gaines 

phy,  33  Towa,  270;  Shelton  v.  State,  i?.  Com.  50  Penn.  St.  319.    SeeWhart. 

34  Tex.  662.  on  Homicide,  §  683. 

2  Com.  V.  Piper,  120  Mass.  186;  n  Hartung  v.  Peeple,  4  Parker  C, 
Hawks  V.  Charlemont,  110  Mass,  110;  R.   319. 

Kennedy  v.  People,  39  N.  Y,  245.  12  Farmers'  Bk.  v.  Young,  36  Iowa, 

8  Slater   v.  Wilcox,   57   Barb.  604.  45. 

See  Benson    v.    Griffin,   30   Ga.    106;  "  Wilcox  v.  Hall,  53  Ga.  635. 

Horton  v.  Green,  64  N.  C.  64;  John-  1*  State  v.  Hinkle,  6  Iowa,  380. 
son  V.  State,  1  Ala.  Sel.  Ca.  72. 

406 


CHAP.  VIII.]  WITNESSES  :   EXPERTS.  [§  444. 

for  five  years,  and  is  acquainted  with  gases,  and  with  the  compo- 
sition of  camphene,  as  to  the  safety  of  a  camphene  lamp.^ 

§  444.  Nor  is  it  necessary  that  a  specialty,  to  enable  one  of 
its  practitioners  to  be  examined  as  an  expert,  should    .    , 

,1  .         .  ^  .   .  And  so  of 

involve  abstruse  scientific  conditions.  A  coal-heaver  practition- 
would  be  more  familiar  with  the  laws  bearing  on  his  business 
handiwork  than  would  be  a  person  who  was  without  ^P"^^'^  ^" 
such  experience  ;  and  hence  a  coal-heaver  would  be  an  admis- 
sible expert  on  questions  as  to  whether  certain  coal  was  heaved 
negligently. 2  A  stockman  is  more  likely  rightly  to  estimate  the 
size  of  a  herd  of  cattle  than  would  an  ordinary  observer  ;  hence 
a  stockman  may  be  asked  as  to  the  number  of  stock  of  a  partic- 
ular brand  running  in  a  range  ;  ^  and  as  to  the  weight  of  cattle 
raised  by  himself.*  So  it  has  been  held,  that  tailors  may  be  ex- 
amined as  to  whether  a  pocket  could  have  been  picked  through  a 
cut  made  by  a  pickpocket  in  a  coat,  when  it  appears  that  the 
coat  had  been  mended  subsequently  to  the  examination  ;  ^  master- 
builders,  as  to  the  damage  done  certain  buildings  ;  ^  journeymen 
carpenters,  as  to  the  safety  of  buildings ;  "^  ship-furnishing  car- 
penters, as  to  the  construction  of  berths ;  ^  mechanics  who  have 
worked  on  ships,  as  to  the  effect  of  certain  repairs  to  a  vessel ;  ® 
well-diggers,  as  to  the  imperviousness  to  water  of  soil ;  ^^  farmers, 
as  to  whether  particular  land  requires  draining  in  order  to  have 
crops, ^1  and  as  to  injury  said  to  be  received  by  cattle, ^^  and  as  to 
the  effect  of  disturbances  and  noises  on  grazing  cattle  ;  ^^  garden- 
ers, as  to  the  damage  sustained  by  a  garden  and  nursery  ;  ^*  gas- 
fitters,  as  to  the  characteristics  of  gas-meters  ;  ^°  machinists,  who 
were  in  cars  at  a  particular  accident,  as  to  what  threw  the  cars 
off  the  track ;  ^^  tobacco  dealers,  as  to  the  best  mode  of  testing 

^  Bierce  v.  Stocking,  11  Gray,  174.  ^  Sikes  v.  Paine,   10  Iri-d.  (N.  C.) 

*  See,  as   S'vi"g  ''''  contrary  view,     L.  280. 

Hamilton  v.  11.  R.  36  Iowa,  81.  lo  Buffum  v.  Harris,  5  R.  I.  24,3. 

8  Albright  v.  Corley,  40  Tex.  105.  "  Hufriim  v.  Harris,  5  R.  I.  243. 

*  Carpenter  v.  Wait,  11  Cush.  257.  "  p^lk  v.  Coflin,  9  Cal.  56. 

6  People  r.  Morrigan,   29  Mich.  5.  "  B;ilt.  R.R.i).  Thompson,  10  Md.  76. 

See  qucere.  ^*  Vandine    v.    Burpee,    13    Mete. 

6  Tibbetts  V.  Haskins,  16  Me.  283.  (Mass.)  288.     See  Whitbeck   v.  K.  R. 

'  Moulton   V.   McOwen,    103  Mass.  3G  Barb.  644. 

587.  16  Downs   v.   Sprague,   1    Abb.  (N. 

*  Tinney  v.  Steamb.  Co.  5  Lansing,  Y.)  .\pp.  Deo.  480. 

507.  "  Seaver  t'.  R.  R.  14  Gray,  466. 

407 


§  444.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

tobacco  ;  ^  engravers,  as  to  whether  an  impression  was  original  or 
secondary  ;  ^  pilots,  as  to  the  nature  of  a  particular  danger  of 
navigation  with  which  they  are  familiar ;  ^  persons  conversant 
with  horses,  as  to  whether  certain  obstructions  would  frighten 
horses ;  *  mail-agents,  who  have  been  accustomed  to  travel  for 
years  constantly  on  the  cars,  as  to  the  degree  to  which  speed 
should  be  slackened  on  nearing  a  station  ;^  brakesmen,  as  to  the 
time  required  to  stop  a  train  ;  ^  engine-drivers,  as  to  the  possi- 
bility of  avoiding  a  collision  ; "  millers,  as  to  the  condition  of  a 
bolting  cloth ,^  and  as  to  the  working  condition  of  a  mill ;  ^  sea- 
men, as  to  whether  a  certain  mode  of  navigation  is  prudent, 
as  to  questions  of  collision  and  wreck,^^  as  to  whether  a  ship 
has  a  full  cargo,^^  as  to  the  proper  mode  of  stowing,!^  ^s  to 
the  effect  of  a  particular  leak,^^  ^s  to  the  proper  mode  of  tow- 
ing, ^^  and  as  to  whether,  when  it  was  maintained  that  the  length 
of  the  shaft  of  a  steamer  settled  the  boat  by  the  stern,  and 
caused  the  journals  to  heat  and  bind,  the  boat  settled  more 
than  it  ought  to,  or  than  was  usual ;  ^^  dairymen,  as  to  the  adul- 
teration of  milk  ;  ^^  practical  firemen,  as  to  what  changes  in  a 
building  would  affect  its  exposure  to  fire ;  ^''  masons,  as  to  the 
length  of  time  requisite  to  dry  the  walls  of  a  house  so  as  to 
make  it  fit  for  habitation, ^^  as  to  the  proper  measurement  of  ma- 
sonry ,^9  and  as  to  the  strength  of  a  wall ;  -^  miners,  as  to  the  cause 
of  cracking   and  settling  of    walls  ;  21  brick-makers,  as   to   the 

1  Atwater    v.    Clancy,    107    Mass.  10  Fenwick  v.  Bell,  1  C.  &  K.  312; 
369.  Lane  v.  Wilcox,  55  Barb.  615. 

2  Per  Lord  Mansfield,  in  Folkes  v.  "  Ogden  v.  Parsons,  23   How.  167. 
Chadd,  3  Dougl.  15  7.     See  R.   o.Wil-  12  p^igg  „,  Powell,  3  Comst.  322. 
liams,  8  C.  &  P.  434.  "  Parsons  v.  Ins.  Co.  16  Gray,  463. 

3  Hill  V.  Sturgeon,  28  Mo.  323.  "  Delaware    St.   Co.   v.    Starrs,  69 
*  Moreland  v.  Mitchell  Co.  40  Iowa,     Penn.  St.  41. 

394  ;  Clinton  v.  Howard,  42  Conn.  295.         ^^  Campbell,  J.,  Clark  v.  Detroit  L. 

6  Detroit  R.  R.  v.  Van   Steinburg,  M.  W.  32  Mich.  348. 
17  Mich.  99.  16  Lane  y.  Wilcox,  55  Barb.  615. 

6  Mott  V.  R.  R.  8  Bosw.  345.     See,         "  Schenck  v.  Ins.  Co.  24  N.  J.  L. 

contra,    Hamilton  v.  R.   R.   36  Iowa,  343. 

31  ;  Muldowney  v.    R.    R.    36    Iowa,         ^^  Smith  v.  Gugerty,  4  Barb.  619. 
462.  19  Schulte   v.   Hennessy,  40   Iowa, 

'  Bellefontaine   R.  R.  v.  Bailey,  11  352. 
Oh.  St.  333.  20  Montgomery  v.  Gilmer,   33  Ala. 

8  Cooke  V.  England,  27  Md.  14.  116. 

9  Read  v.  Barker,  30  N.  J.  L.  378.  21  ciark  v.  AVillett,  35  Cal.  534. 

408 


CHAP.  VIII.]  WITNESSES  :    EXPERTS.  [§  444, 

proper  way  of  putting  tile  in  the  kiln  for  burning  ;  ^  mill-wrights, 
as  to  the  character  of  a  mill,  and  of  mill  work  ;^  ship-wrights,  on 
questions  of  seaworthiness  ;  ^  mill-owners,  as  to  the  skilfulness 
of  a  millwright,*  tanners,  as  to  the  best  mode  of  tanning  a 
hide  ;  ^  experts  in  insurance,  as  to  the  practice  of  insurance  com- 
panies.^ So  engineers  have  been  permitted  to  give  their  opin- 
ions as  to  the  effect  of  an  embankment  on  a  harbor  ; "  as  to  the 
way  in  which  a  steamboat  was  struck,  at  a  collision,^  as  to  the 
force  of  particular  tides  and  streams  of  water.^  A  witness  who 
testified  that  he  had  control  of  a  stationai'y  steam-engine,  and 
that  while  he  did  not  claim  to  be  a  practical  engineer,  he  had 
fired  and  handled  a  locomotive,  and  understood  an  engine,  may 
testify  as  an  expert  as  to  the  effect  of  a  leaky  throttle-valve  on 
a  locomotive  engine. ^*^  An  engineer,  also,  may  testify  as  to  the 
cause  of  a  particular  bayou  ;  ^^  and  as  to  the  effect  of  certain 
di'ains  on  a  fountain  of  water. ^^  Surveyors,  versed  in  the  peculiar 
practice  of  their  profession,  may  speak  as  to  the  meaning  and 
effect  of  plans  requiring  such  explanation,^'^  but  not  as  to  the  true 
location  of  land  which  is  in  controversy.^*  But  the  specialty 
must  be  that  in  which  the  expert  is  skilled.^^  Thus  a  painter 
cannot  be  examined  as  to  the  construction  of  a  building.^*^  Nor 
is  a  surveyor  of  highways,  who  is  not  an  expert  in  road  building, 
admissible  to  testify  as  to  the  safety  of  a  road.^'  Nor  can  a  sur- 
veyor be  admitted  to  testify  as  to  the  legal  interpretation  to  be 

J  Vandine    v.    Burpee,     13    Mete.  ^o  Brabbitts  v.  R.  H.  38  Wise.  2!)0. 

(Mass.)  288.  "  Avery  v.  Police  Jury,  12  La.  An. 

2  Wignrins  V.  Walkcc,  1 9  Barb.  338 ;  654. 

Hammond   v.  Woodman,  41  Me.  177;  ^2  Buffum  v.  Harris,  5  R.  I.  243. 

Dctweiler  i>.  Groff,  10  Penn.   St.  376;  "  Messer  v.  Reginnittcr,  32  Iowa, 

Walker  v.  Fields,  28  Ga.  237.  312;  Clegg  v.  Fields,   7   Jones  L.  (N. 

8   Beck  worth     v.    Sydebotham,    1  C.)  37  ;    Brantly   v.    Swift,    24   Ala. 

Camp.    IIG  ;    Thornton    v.    Ins.    Co.  390. 

Pea.  R.  25;  Cook  v.  Castner,  9  Cush.  "  Wallace   v.    Goodall,    18    N.  II. 

26fi.  439;  Randolph   v.    Adams,   2  W.  Va. 

*  Doster  v.  Brown,  25  Ga.  24.  519;  Stevens  r.  West,  6  Jones  (N.  C.) 

6  Bearss  i'.  Copley,  10  N.  Y.  93.  L.  49  ;    Bhnnenthal  v.    Roil,    24    Mo. 

«  Infra,  §  507.  113;    Schultz    v.    LiudcU,     30    Mo. 

'  Folkes  y.  Chadd,  3  Doug.  157.  310. 

8  Clipper  V.  Logan,  18  Oh.  375.  "  Supra,  §  439. 

9  Phillips  V.  Terry,  3  Abb.  (N.  Y.)  "  Kilbourne  v.  Jennings,  38  Iowa, 
App.  607;  Porter  v.  Pequonnoc  Man.  533. 

Co.  17  Conn.  249.  "  Lincoln  r.  Barre,  5  Cush.  590. 

409 


§  446.]  THE  LAW   OF   EVIDENCE.  [BOOK  II. 

given  to  a  survey.^  But  practical  surveyors  may  express  their 
opinions,  whether  certain  marks  on  trees,  piles  of  stone,  &c., 
were  intended  as  monuments  of  boundaries.^ 

§  445.  A  specialist  in  a  particular  art  is  admissible  to  prove 
gg  ^f  the  conditions  of  such  art.     Thus  a  painter,  whether 

artists.  professional  or  amateur,  is  admissible  on  the  question 
of  the  genuineness  of  a  picture ;  ^  a  photographer,  as  to  the  char- 
acter of  the  execution  of  a  photograph.*  So,  where  the  question 
was  whether  a  paper  had  contained  certain  pencil  marks,  which 
were  alleged  to  have  been  rubbed  out,  the  opinion  of  an  en- 
graver, who  had  examined  the  paper  with  a  mirror,  was  held  to 
be  admissible  evidence,  valeat  quantum.^  Seal-engravers,  also, 
as  we  have  seen,  may  be  called  to  give  their  opinions  upon  an 
impression,  whether  it  was  made  from  an  original  seal,  or  from 
another  impression.^ 

§  446.  So  persons  familiar  with  a  market  have  been  examined 
So  of  per-  as  to  what  are  the  demands  of  such  market,  what  is  the 
iar  wltira'  market  valuation  of  a  particular  article,  and  how  such 
market.  value  is  affected  by  particular  influences.  Thus,  an 
underwriter  or  broker,  who  has  become  familiar  with  the  extent 
to  which  a  particular  circumstance  affects  premiums,  may  prove 
such  extent ;  "^  an  experienced  insurance  agent  may  speak  as  to 
the  effect  of  certain  conditions  on  insurance ;  ^  a  business  man, 
familiar  with  what  is  paid  for  particular  services,  as  to  the  value 
of  such  services.^  So  pork-packers  may  be  examined  as  to  the 
effect  of  transportation  on  hams ;  '^^  and  horse-dealers  as  to  how 
far  cribbing  affects  the  value  of  a  horse.^^  In  fine,  market  value 
can  be  proved  by  any  one  conversant  with  the  markets.  If  the 
thing  is   one   of    ordinai'y  use,   ordinary  business   experience  is 


1  Ormsby  v.  Ihmsen,  34  Penn.  St.  '  Hawes   v.  Ins.    Co.   2   Curt.  130. 
462.    Infra,  §  972.  See  infra,  §  447, 

2  Davis  V.  Mason,  4  Pick.  156.  »  Hobby   v.   Dane,    17    Barb.    Ill; 
8  Abbey  v.  Lill,  5  Bing.  299,  304;  Kern  v.  Ins.  Co.  40  Mo.  19.  See  Hart- 
Woodcock  V.   Houldsworth,  16  M.  &  ford  Ins.    Co.  v.  Harmer,  2    Oh.   St. 

,  W.  124.  452. 

*  Barnes  v.  Ingalls,  39  Ala.  193.  ^  McCoUum  v.   Seward,  62   N.  Y. 

6  R.  V.  Williams,  8  C.  &  P.  434,  per  316. 

Parke,  B.,  and  Tindal,  C.  J.  "Kershaw    v.   Wright,  115   Mass. 

«  Per  Ld.  Mansfield,  in  Folkes  v.  361. 

Chadd,  3  Doug.  157.  "  Miller  r.  Smith,  112  Mass.  470. 

410 


CHAP.  VIII.] 


WITNESSES  :   EXPERTS. 


[§  446. 


sufficient  for  this  purpose. ^  And,  as  a  general  rule,  persons  ac- 
customed to  deal  in  real  estate,  or  other  property,  may  be  exam- 
ined as  to  the  value  of  such  property,  and  the  effect  on  it  of  cer- 
tain extraneous  conditions.^ 


1  Alfonso  V.  U.  S.  2  Story,  421  ; 
Whipple  V.  Walpole,  10  N.  H.  130; 
Peterboro'  v.  Jaffrey,  6  N.  H.  462; 
Lowe  V.  R.  R.  45  N.  H.  370  ;  Vandine 
V.  Burpee,  13  Mete.  (Mass.)  288; 
Walker  v.  Boston,  8  Cush.  1 79 ;  Dwight 
V.  County,  11  Cush.  201  ;  Russell  v. 
R.  R.  4  Gray,  607;  Swan  v.  Middle- 
sex, 101  Mass.  173;  Smith  v.  Hill,  22 
Barb.  656;  Todd  v.  Warner,  48  How. 
(N.  Y.)  Pr.  234  ;  Van  Deusen  v. 
Young,  29  N.  Y.  9  ;  Robertson  v. 
Knapp,  35  N.  Y.  91;  Hood  v.  Max- 
well, 1  W.  Va.  219  ;  Butler  v.  Mehr- 
ling,  15  111.  488;  Ohio  R.  R.  v.  Irvin, 
27  111.  178;  Hough  r.  Cook,  69  III. 
581  ;  Frankfort  R.  R.  v.  Windsor,  51 
Ind.  238;  Kermott  v.  Ayer,  11  Mich. 
181;  Ward  r.  Reynolds,  32  Ala.  384; 
Rawles  V.  James,  49  Ala.  183  ;  Cant- 
ling  V.  R.  R.  54  Mo.  385  ;  Hastings  v. 
Uncle  Sam,  10  Cal.  341  ;  Gonzales  v. 
McHugh,  21  Tex.  256. 

2  Webber  v.  R.  R.  2  Mete.  147; 
Swan  V.  Middlesex,  101  Mass.  173; 
Lawton  v.  Chase,  108  Mass.  238  ; 
Browning  v.  R.  R.  2  Daly,  117;  Orr 
V.  N.  Y.  64  Barb.  106  ;  Teerpenning 
V.  Ins.  Co.  43  N.  Y.  279  ;  Bedell  v. 
R.  R.  44  N.  Y.  367;  Van  Deusen  v. 
Young,  29  Barb.  9;  McDonald  v. 
Christie,  42  Barb.  36;  Stone  v.  Covell, 
29  Mich.  3  79;  Brackett  v.  Edgerton, 
14  Minn.  174;  Snyder  v.  R.  R.  25 
Wise.  60.  See  Seyfarth  v.  St.  Louis, 
52  Mo.  449. 

"A  witness  who  is  acquainted  with 
the  land,  and  knows  its  capabilities  and 
the  proper  mode  of  cultivating  it,  can 
form  a  more  intelligent  opinion  than 
the  jury,  whose  judgment,  unless  they 
can  be  aided  by  the  opinions  of  such 
witnesses,  must  be  formed  solely  upon 


a  rapid  view  or  a  description  of  the 
premises.  We  are  of  the  opinion  that 
the  case  at  bar  falls  within  the  prin- 
ciple of  the  numerous  adjudications  in 
this  commonwealth,  which  permit  the 
opinions  of  competent  witnesses  to  be 
given  as  to  the  value  of  land  taken,  or 
as  to  the  damages  or  benefits  to  adjoin- 
ing land,  to  aid  the  judgments  of  the 
jurors."  Vandine  v.  Burpee,  13  Met. 
288;  Walker  v.  Boston,  8  Cush.  279; 
Shaw  V.  Charlestown,  2  Gray,  107; 
West  Newbury  v.  Chase,  5  Gray,  421; 
Swan  V.  Middlesex,  101  Mass.  173; 
Sexton  V.  North  Bridgewater,  116 
Mass.  200. 

"  The  question  whether  a  witness  has 
the  requisite  knowledge  to  enable  him 
to  give  his  opinion,  is  one  which  is 
largely  within  the  discretion  of  the 
presiding  judge  or  officer.  In  this 
case  the  witness  was  a  farmer,  having 
a  farm  near  the  petitioners,  which  was 
divided  by  a  railroad,  who  knew  the 
petitioner's  farm,  his  mode  and  neces- 
sities in  the  management  of  his  farm, 
and  his  means  of  crossing  the  rail- 
road. We  cannot  see  that  the  j)re- 
siding  officer  erred  in  admitting  his 
testimony."  Morton,  J.,  Tucker  v. 
Mass.  Central  R.  R.  118  Mass.  54  7. 

"  On  the  issue  of  the  value  to  the  les- 
see of  rooms  in  a  building  which  had 
been  taken  by  a  city  to  widen  a  street, 
it  is  within  the  discretion  of  the  judge 
presiding  at  the  trial  to  permit  a  wit- 
ness who  underlets  rooms  in  a  build- 
ing in  the  vicinity,  and  who,  for  this 
purpose,  has  informed  himself  gener- 
ally of  the  rents  of  buililings,  to  give 
an  opinion  as  to  the  value  of  the  les- 
see's premises,  although  he  has  not  ex- 
amined, and  is  not  familiar  with,  the 

411 


§  447.]  THE  LAW   OF  EVIDENCE.  [BOOK  II. 

On  questions  of  valuation  of  property  it  is  impracticable  to  lay- 
down  any  precise  line  of  demarcation  between  the  expert  and  the 
non-expert.  The  safest  course  is  to  permit  the  examination  of 
all  having  experience  in  the  thing  to  be  valued,  leaving  their 
authority  to  be  tested  on  their  cross-examination. ^  Courts  of 
error  will  deal  liberally  with  questions  of  this  class,  and  will  not 
reverse  because  the  culture  of  the  expert  is  not  sufficiently  spe- 
cial, when  ordinary  competency  appears ;  ^  though  some  special 
qualifications  must  be  shovvn.^ 

§  447.  The  cases  bearing  an  opinion  as  to  value  are  so  numer- 
ous as  to  invite  peculiar  consideration.    As  will  be  here- 

Opinion  as  a     ^  ^  r>  •      i  i  • 

to  value       after  seen,*  the  value  of  a  particular  thing  at  a  partic- 

adtnissible.        ,  .  ^  •      j.       ^         •    c  ^    £ 

ular  moment  or  place  is  to  be  interred  irom  various 
facts,  among  which  may  be  mentioned  its  possession  of  certain 
intrinsic  conditions  enabling  it  to  meet  a  market  demand,  and  its 
value  at  other  times  and  places,  so  as  to  give  it  a  marketable  price. 
Two  essentials,  therefore,  exist  to  a  proper  estimate  of  value  : 
first,  a  knowledge  of  the  intrinsic  properties  of  the  thing  ;  sec- 
ondly, a  knowledge  of  the  state  of  the  markets.  As  to  such 
intrinsic  properties  as  are  occult,  and  out  of  the  range  of  com- 
mon observers,  experts  are  required  to  testify  ;  as  to  properties 
which  are  cognizable  by  an  observer  of  ordinary  business  sagac- 
ity, being  familiar  with  the  thing,  such  an  observer  is  permitted 

building   in  question."     Lawrence  v.  Mass.  200;  Demerritt  v.  Randall,  116 

Boston,  119  Mass.  126,  Gray,  C.  J.  Mass.  331."     Hawkins  v.  City  of  Fall 

"  Upon  the  assessment  of  damages  River,  119  Mass.  94. 
sustained  by  the  taking  of  land  for  a  ^  Webber   v.  R.  R.  2   Mete.    147; 
highway,  a  witness  who  has  testified  Dickenson  u.  Fitchburg,  13  Gray,  546; 
without  objection  to  the  value  of  the  Brady  v.  Brady,  8  Allen,  101 ;  Swan 
land  taken  may  state  the  reasons  of  v.  Middlesex  Co.  101  Mass.  173;  Law- 
his  opinion.     By  the  court.     The  re-  ton  v.  Chase,   108  Mass.   238;   Teer- 
fusal  of  the  sheriff,  to  permit  the  wit-  penning   v.   Ins.    Co.  43    N.  Y.   279; 
ness  Almy  to  state  the  reasons  of  his  Bedell  v.  R.  R.  44  N.  Y.  367;  Brack- 
opinion,  was  erroneous.    The  point  has  ett  v.  Edgerton,  14  Minn.  174;  Snyder 
been  repeatedly  decided,   both  as  to  v.  R.  R.  25   Wise.  60.      See  infra,  §§ 
witnesses  testifying   to  value,  and  as  531-546;  supra,  §  438. 
to  experts,  strictly  so  called.      Com-  ^  Delaware  Towboat  Co.  v.  Starrs, 
monwealth  y.  Webster,  5   Cush.  295;  69  Penn.  St.  36. 
Keith  V.  Lothrop,  10  Cush.  453;  Dick-  »  Mercer  v.  Vose,  40  N.  Y.  Sup.  Ct. 
enson  V.  Fitchburg,  13  Gray,  546;  Lin-  218;    Sanford  r.  Shepard,  14    Kans. 
coin  V.  Taunton  Copper  Co.  9  Allen,  228.     See  supra,  §  439. 
181 ;  Sexton  v.  North  Bridgewater,  116  *  Infra,  §  1290. 
412 


CHAP.  VIII.]  WITNESSES :    EXPERTS.  [§  448. 

to  testify.^  So  the  influence  on  value  of  certain  patent  condi- 
tions (e.  g.  railroad  construction,  opening  of  highways)  may 
be  thus  estimated  by  witnesses  of  business  sagacity,  of  ordinary 
familiarit}^  with  such  values. ^  But  as  to  effects  which  only  an 
expert  can  measure,  only  an  expert  can  be  examined.*'^ 

§  448.  It  is  elsewhere  noticed  that  conclusions  as  to  value  are 
largely  made  up  of  presumptions.*     We  presume  that   Generic 
the  value  a  marketable  article  had  a  year  ago  it  con-   ^^figsfbL 
tinues  to  have  ;  we  take  the  value  it  has  in  a  proximate   |n  o'derto 

'  •■■  ^  infer  spe- 

and  sympathetic  market  as  one  of  the  data  from  which  cific. 
to  determine  the  value  it  has  in  our  own  market.  For  the  same 
reason  we  resort  to  the  general  value,  belonging  to  things  of  a 
given  class,  in  order  to  infer  the  value  of  a  particular  mem- 
ber of  such  class.  A  witness,  for  instance,  may  not  be  able  to 
speak  of  the  exact  distinctive  value  of  an  article  he  has  not  seen. 
He  is  allowed,  however,  to  speak  of  the  market  value  of  the  class 
to  which  this  article  belongs.  He  has  never,  for  instance,  seen  a 
horse  whose  value  is  in  controversy  ;  and  he  cannot,  therefore, 
answer  as  to  the  specific  value.  But  he  may  answer  as  to  the 
generic  value  of  horses,  of  age,  color,  soundness,  and  speed,  such 
as  those  assumed  to  belong  to  this  particular  horse.     Thus,  it 

1  See  cases  in  §  446 ;  and  see  Has-  tate  broker,  as  to  the  commission  that 

kins  V.   Ins.  Co.  5   Gray,  432  ;  Davis  he  charged  for  such  a  service,  and  as 

V.  Elliott,  15  Gray,  90;  Fowler  v.  Mid-  to  what  he  would  have  charged  in  the 

dlesex,  6  Allen,   926;  Whitman  v.  R.  case  in  question,  was  admissible.    Elt- 

R.  7   Allen,  313;  Kendall  v.  May,  10  ing  ;;.  Sturtevant,  41  Conn.  176. 

Allen,   59;  Rogers  v.    Ackerman,   22  ^  Dwight  v.  County,  11   Cush.  201; 

Barb.    134;   Clark  v.    Baird,  9  N.  Y.  West  Newbury  y.  Chase,  5  Gray,  421 ; 

183;  Butler  i'.   Mehrling,  15  111.  488;  Rochester  R.  R.  v.  Budlong,  10  How. 

Hough  V.   Cook,  69  111.  581;  Crouse  (N.  Y.)   Pr.  2.89;  Brown  v.  Corey,  43 

V.  Holman,  19  Ind.  30 ;  Frankfort  R.  Pehn.    St.  495;  Cleveland   R.   R.   v. 

R.  V.  Windsor,  51  Ind.  238;  Anson  v.  Ball,  5  Oh.  St.  568. 

Dwight,    18    Iowa,   241;    Continental  8  Clark  v.    Rockland,   52  Me.   68; 

Ins.   Co.   V.   Ilorton,    28    Mich.    173;  Buffum   v.  R.  R.  4  R.I.  221;  Forbes 

Whitfield  ('.  Whitfield,  40  Miss.  350.  v.  Howard,  4    R.  I.   364  ;  "Whitney  v. 

Where   the    plaintiff  sued   for  ser-  Boston,    98    Mass.    312;    Lamoure  v. 

vices  in  purchasing  a  mill  for  the  de-  Caryl,    4    Denio,    370;    Clussman   v. 

fendant,   he    not   being   a  real  estate  ]\IerkeI,    3    Bosw.    402  ;     Sinclair    v. 

l)roker,  and  no  agreement  had   been  Roush,    11   Ind.  •l.'>0;   l):il/.cll  c.  Pav- 

madc  as  to  the  amount  of  his  eompen-  enport,  12  Iowa,  437;  Elfelt  v.  Smith, 

sation,  it  was  held  that,  upon  inquiry  1  Minn.  125;  Sanford  v.  Shepard,  14 

as  to  what  his   services  were  reason-  Kans.  228.     Supra,  §  439. 

ably  worth,  the  evidence  of  a  real  cs-  ■*  Infra,  §  1 290. 

413 


§  448.] 


THE   LAW    OF   EVIDENGH. 


[book  II. 


has  been  held  admissible  to  ask  an  expert  as  to  the  general  value 
of  a  good,  well-broken  setter  dog  ;  ^  and  how  far  cribbing  affects 
the  market  value  of  a  horse.^     But  a  mere  speculative  surmise » 

1  Brill  V.  Flagler,  23  Wend.  354, 
cited  in  next  note. 

2  Miller  v.  Smith,  112  Mass.  475. 

"  Whenever  the  value  of  any  pecul- 
iar kind  of  property,  which  may  not 
be  presumed  to  be  within  the  actual 
knowledge  of  all  jurors,  is  in  issue, 
the  testimony  of  witnesses  acquainted 
with  the  value  of  similar  property  is 
admissible,  although  they  have  never 
seen  the  very  article  in  question. 
Beecher  v.  Denniston,  13  Gray,  354; 
Fitchburg  Railroad  Co.  v.  Freeman, 
12  Gray,  401;  Brady  v.  Brady,  8 
Allen,  101  ;  Cornell  v.  Dean,  105 
Mass.  435;  Lawton  v.  Chase,  108 
Mass.  238.  A  witness  having  the  req- 
uisite knovi^ledge  and  experience  may 
always  be  examined  by  hypothetical 
questions,  even  if  he  has  not  seen  the 
particular  subject  to  which  the  trial 
relates,  and  has  not  heard  all  the  other 
evidence  given  in  the  case.  Woodbury 
V.  Obear,  7  Gray,  46  7;  Hunt  v.  Lowell 
Gas  Light  Co.  8  Allen,  169,  172. 

"  In  Brill  i'.  Flagler,  23  Wend.  354, 
which  was  an  action  of  trespass  for 
killing  a  setter  dog,  one  inquiry  per- 
mitted to  be  made,  against  objection, 
was,  '  as  to  the  value  of  a  good,  well- 
broke  setter  dog;  '  and  Chief  Justice 
Nelson  was  of  opinion  that,  in  answer 


thus  fixed  that  may  assist  in  arriving 
at  the  value  in  the  particular  instance, 
which  will  vary  according  to  the  qual- 
ity, condition,  &c.,  of  the  article  in 
question.'  His  only  doubt  as  to  the 
admission  of  the  testimony  seems  to 
have  been  whether  the  proof  of  the 
breed  and  qualities  of  the  plaintifPs 
dog  was  sufficient  to  authorize  the 
general  inquiry  ;  and  his  opinion  in 
favor  of  the  competency  of  the  testi- 
mony appears  to  have  been  approved 
by  this  court  in  Vandine  v.  Burpee,  13 
Met.  288,  291. 

"  In  the  present  case,  the  question 
whether  cribbing  was  unsoundness, 
and,  if  it  was,  how  far  it  aflfected  the 
value  of  the  mare  in  question,  were 
questions  of  f;ict  for  the  jury.  Wash- 
burn V.  Cuddihy,  8  Gray,  430.  But 
it  is  not  to  be  presumed  that  all  jurors 
are  necessarily  acquainted  with  the 
eflfect  of  this  habit  upon  the  value  of 
fast  trotting  horses.  No  objection  was 
made  to  any  of  the  witnesses  on  the 
ground  of  their  want  of  knowledge  or 
experience  ;  and  we  are  of  the  opinion 
that  all  the  interrogatories  objected 
to  were  competent.  The  third  asked 
for  the  value  of  fast  trotting  horses 
of  a  certain  age,  size,  gait,  speed,  and 
other  qualities.  The  fourth  was  wheth- 


to  such  an  inquiry,  the  testimony  of    er  the  habit  of  cribbing  or  wind  suck- 


witnesses  acquainted  with  the  peculiar 
qualities  of  setter  dogs,  and  who  had 
some  knowledge  of  their  value  in  the 
market,  was  admissible  (although  they 
gave  their  opinions  as  to  the  value  of 
setter  dogs  generally,  and  not  as  to 
the  value  of  the  plaintiffs  dog  in  par- 
ticular), upon  the  ground  that  '  they 
are  supposed  to  be  better  acquainted 
with  the  general  market  value  of  such 
animals  than  the  generality  of  man- 
kind,' and  that  *  a  common  standard  is 

414 


ing  injured  fast  trotting  horses  for  use 
and  in  market  value,  and  how  much. 
And  the  fifth  was  substantially  a  rep- 
etition of  the  fourth,  as  applied  to  a 
horse  such  as  described  in  the  third, 
and  of  the  value  which  the  plaintiff  paid 
the  defendant  for  the  mare  in  ques- 
tion, and  which  the  defendant  testified 
at  the  trial  was  her  fair  value."  Gray, 
C.  J.,  Miller  v.  Smith,  112  JNIass.  475. 

So  in  an  action  for  the  conversion 
of  tobacco  raised  in  1872,  a  witness, 


CHAP.  VIII.] 


WITNESSES  :    EXPERTS. 


[§  449. 


based  upon  imaginary  conditions,  is  irrelevant. ^  Thus,  upon  the 
issue  of  the  value  of  vacant  land  taken  pursuant  to  the  St.  of 
1873,  c.  189,  for  a  post-ofl5ce  in  Boston,  the  testimony  of  an  ex- 
pert as  to  what  would  be  the  fair  rental  value  of  the  land  with 
a  suitable  and  proper  building  upon  it,  has  been  held  inadmis- 
sible.^ 

§  449.  Value,  it  must  be  remembered,  consists  in  the  estimate, 
in  the  opinion  of  those  influencing  a  market,  attacha-    „     ,  , 

....  .    .  .  .  Proof  of  a 

ble  to  certain  intrinsic  qualities  belonging  to  the  article    market 
to  be  valued.     The  opinion  of  such  persons  can  only  be   be  through 
presented,  in  most  cases,  by  hearsay.     A  broker,  for     ^^""^^y- 
instance,  who  is  called  as  to  the  market  value  of  a  particular 


who  testified  as  an  expert  that,  in 
September,  1874,  when  a  demand  was 
made,  there  was  a  market  value  to 
the  crop  of  1872  tobacco  grown  in 
the  vicinity,  so  that  he  could  tell  the 
value  of  a  lot  of  that  tobacco  without 
seeing  it,  or  knowing  more  of  it  than 
it  was  of  that  crop,  was  held  right- 
fully admitted  to  testify,  against  the 
defendant's  objection,  that  the  value 
was  from  eight  to  ten  cents  per  pound, 
though  the  witness  on  cross-examina- 
tion testified,  among  other  things,  that 
he  could  not  tell  the  value  of  any  par- 
ticular crop  raised  that  year,  save  by 
inspection,  sample,  or  description,  and 
that  lots  of  tobacco  raised  that  year 
difTered  very  much,  and  no  two  were 
ahke.  Draper  t".  Saxton,  118  Mass. 
428. 

"  The  witness  Tucker  was  properly 
allowed  to  testify  to  the  value  of  the 
tobacco  crop  of  1872  in  that  vicinity. 
The  objection  is  not  made  to  the  wit- 
ness on  the  ground  of  his  want  of 
knowledge  or  experience,  but  to  the 
competency  of  the  evidence  itself. 
Such  evidence  is  competent  for  the 
purpose  of  ascertaining  the  market 
value  of  a  certain  class  or  kind  of 
property,  and  may  assist  in  determin- 
ing the  value  of  an  article  belonging 
to  that  class,  although  the  value  of  the 


particular  article  may  vary  according 
to  its  condition  and  (jiiality.  The  com- 
petency of  this  evidence  is  fully  con- 
sidered and  the  cases  cited  in  Miller 
V.  Smith,  112  Mass.  470."  Endicott, 
J.,  Draper  v.  Saxton,  118  Mass.  431. 

^  Brown  v.  11.  R.  5  Gray,  35;  Wes- 
sen  V.  Iron  Co.  13  Allen,  9.5;  Fair- 
banks V.  Fitchburg,  110  ]\Iass.  224. 

^  Burt  V.  Wigglesworth,  117  Mass. 
302. 

"But  testimony  as  to  what  would 
be  the  fair  rental  value  of  the  land 
with  a  suitable  and  proper  building 
upon  it  related  to  mere  matter  of  opin- 
ion as  to  the  future,  not  of  present 
fact,  and  was  too  prospective  and  in- 
definite in  its  nature  to  be  comjjetent 
evidence  of  the  present  value  of  the 
land  not  built  upon.  Fairbanks  i'. 
Fitchburg,  110  Mass.  224;  Brown  v. 
Providence,  Warren  &  Bristol  Rail- 
road, 5  Gray,  35,  39;  Wesson  v.  Wash- 
burn Iron  Co.  13  Allen,  95,  100.  The 
statement  of  Comer  upon  this  point 
was  not  given  by  him  as  one  of  the 
reasons  upon  which  his  opinion  as  to 
the  value  of  the  land  was  founded, 
but  in  answer  to  a  distinct  tpiestion  of 
couni^el,  which  should  havu  been  ex- 
cluded by  the  presiding  judge."  (iray, 
C.  J.,  Burt  V.  Wigglesworth,  117  Mass. 
306. 

415 


/ 


§  450.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

piece  of  property,  and  who  is  cross-examined  as  to  the  sources  of 
his  knowledge,  must  ultimately  say,  "  it  came  from  A.,  B.,  and 
C."  Even  should  we  call  A.,  B.,  and  C,  we  would  get  no  further 
than  hearsay  ;  for  the  testimony  of  either  A.,  B.,  or  C,  as  to 
what  he  would  give  for  the  article,  is  of  little  weight,  unless  such 
testimony  is  based,  not  on  any  properties  of  the  thing  making  it 
peculiarly  valuable  to  this  particular  witness,  but  on  the  estima- 
tion at  which  the  thing  is  generally  held  in  the  market.  Hence 
it  is  that  it  is  no  objection  to  the  evidence  of  a  witness  testifying 
as  to  market  value  that  such  evidence  rests  on  hearsay.^  So,  it  is 
admissible  to  fall  back,  as  a  basis  of  opinion,  on  prices  current, 
'  provided  they  be  traceable  to  reliable  sources.^ 

§  450.  The  distinctions  just  expressed  may  be  applied  to  liti- 
So  as  to  gations  to  determine  the  amount  of  damage  sustained 
damage °^  by  a  party  by  another's  act.  When  the  thing  damaged 
sustained,  jg  one  of  every  day  use,  whose  depreciation  an  ordinary 
business  observer  can  estimate,  then  such  an  observer  may  be 
called  to  express  his  opinion  of  the  extent  of  the  damage  sus- 
tained. If  the  facts  which  form  the  basis  of  such  an  opinion  can 
be  specified,  then  they  must  be  stated  ;  if  the  conclusion  is  one 
which  the  jury  can  draw,  then  to  the  jury  must  be  left  the  draw- 

1  Supra,  §  255  ;  Cliquot's  Cham-  Boston  and  New  York,  might  not 
pagne,  3  Wall.  114  ;  Laurent  v.  properly  be  admitted  to  testify  as  to 
Vaughan,  30  Vt.  90;  Beach  v.  Den-  the  market  value,  at  a  particular  date, 
niston,  13  Gray,  354  ;  Eldridge  v.  of  an  article  of  merchandise  with 
Smith,  13  Allen,  140;  Whitbeck  v.  which  they  were  familiar,  even  though 
R.  R.  36  Barb.  644;  Mish  v.  Wood,  their  knowledge  was  chiefly  obtained 
34  Penn.  St.  222 ;  Doane  v.  Garret-  from  '  daily  price  current  lists  and  re- 
son,  24  .Iowa,  351.  turns  of  sales  daily  furnished  them  in 

2  Infra,  §  672;  Cliquot's  Cham-  Boston,  from  their  New  York  houses.' 
pagne,  3  Wall.  17  ;  Laurent  v.  It  is  not  necessary,  in  order  to  qualify 
Vaughan,  30  Vt.  90  ;  Whitney  v.  one  to  give  an  opinion  as  to  values, 
Thacher,  117  Mass.  527;  Whelan  v.  that  his  information  should  be  of  such 
Lynch,  60  N.  Y.  469 ;  though  see  a  direct  character  as  would  make  it 
Schmidt  v.  Herfurth,  5  Robb.  (N.  Y.)  competent  in  itself  as  primary  evi- 
124.  dence.      It  is  the   experience  he  ac- 

"  The  exception  on  account  of  the  quires  in  the  ordinary  conduct  of  af- 

evidence  admitted  to  show  the  fall  in  fairs,  and  from  means  of  information 

the  price  of  gunny  bags  is  presented  such   as  are  usually  relied  on  by  men 

in  several  aspects.     1.  We  see  no  rea-  engaged  in    business,  for  the  conduct 

son  why  merchandise  brokers  in  Bos-  of    that   business,   that   qualifies  him 

ton,  members  of  firms  doing  business,  to   testify."      Wells,    J.,  Whitney    v. 

and  having  houses  established  both  in  Thacher,  117  Mass.  527. 

416 


CHAP.  VIII.] 


WITNESSES:    EXPERTS. 


[§  451. 


ing  the  conclusion.  But  when,  as  is  often  the  case,  these  facts 
can  be  best  expressed  by  the  damage  they  cause,  then  this  dam- 
age and  its  extent  may  be  testified  to  by  the  witness.^  On  the 
other  hand,  where  the  injury  sustained  is  of  an  occult  character, 
which  only  an  expert  can  properly  gauge,  or  when  the  knowledge 
of  the  value  is  special,  belonging,  not  to  business  men  generally, 
but  only  to  specialists,  then,  if  opinion  as  to  damage  is  to  be 
proved,  a  specialist  must  be  called  to  give  such  opinion,  and  ordi- 
nary observers  are  inadmissible  for  this  purpose.^ 

§  451.  Insanity  is  a  topic  as  to  which,  in  its  scientific  relations, 
experts  may  be  examined  on  a  hypothetical  case,  which 
may  be  put  in  such  a  way  as  to  comprise  the  facts  on    tionsof 

.    1      Q       1  .,  ,  .  1       ,  ■•      1  sanitv,  not 

ti'iai ;  "^  while  on  the  question  as  to  whether  a  particular   only  ex- 
person  is  insane,  there  is  a  strong  chain  of  decisions  to   fiends" 
the  effect  that  not  merely  physicians,  skilled  in  diseases    anf^^^ay*^" 
of  the  mind,  but  intelligent  and  observant  attendants   g'^e  opin- 
and  friends,  who  had    constant    intercourse   with    the 
patient,  may  be  examined.'*     So  far  as  concerns  senile  dementia, 
or  other  chronic  mental  disease,  the  practical  observation  of  busi- 
ness men,  coming  into  constant  intercourse  with  a  party,  is  nat- 


^  West  Newbury  v.  Chase,  5  Gray, 
421;  Shattuck  v.  Stoneham  R.  R.  6 
Allen,  115;  Norman  v.  Wells,  17 
Wend.  13G;  Dolittle  v.  Eddy,  7  Barb. 
74  ;  Simons  v.  Monier,  29  Barb.  419  ; 
Duff  V.  Lyon,  1  E.  D.  Smith,  536  ; 
Brown  V.  Corey,  43  Penn.  St.  495. 
See  Cleveland  R.  R.  r.  Ball,  5  Oh.  St. 
568;  Ottawa  v.  Graham,  35  111.  346; 
Watry  v.  Hiltgen,  16  Wis.  516. 

2  Clark  V.  Rockland,  52  Me.  68; 
Webber  v.  R.  R.  2  Mete.  147;  Whit- 
ney V.  Boston,  98  Mass.  312;  Buffum 
V.  R.  R.  4  R.  I.  221  ;  Fish  v.  Dodge, 
4  Denio,  311;  Lamoure  v.  Caryl,  4 
Denio,  370;  Sinelair  v.  Roush,  14 
Ind.  450;  Whitmore  v.  Bowman,  4 
Greene,  148. 

8  Com.  V.  Rogers,  7  Mete.  (Mass.) 
500 ;  State  v.  Windsor,  5  Ilarriug. 
(Del.)  512,  and  cases  infra,  §  452. 

*  Wheeler  v.  Alderson,  3  Ilagix- 
574  ;   Wright  c.  Tatham,   5   CI.  &   F. 

VOL.  I.  27 


692;  Harrison  v.  Rowan,  3  Wash.  C 
C.  580;  Cram   v.    Cram,   33  Vt.    15 
Fairchild    v.    Bascorab,    35    Vt.    398 
Grant   v.    Thompson,    4    Conn.    203 
Kinne  v.  Kinne,  9  Conn.    102  ;  Real 
V.  People,  42  N.  Y.  270  ;  Fagnan  v. 
Knox,  40  N.  Y.  Sup.  Ct.  41;    Ram- 
bler V.  Tryon,  7  S.  &  R.  90  ;  Wilkin- 
son  V.    Pearson,    23    Penn.   St.    177 
Castner  v.  Sliker,  33  N.  J.  L.  95,  507 
Titlow   V.  Titlow,  54   Penn.  St.  216 
Townshend  i'.  Townshend,  7  Gill,  10 
Weems  v.  Weems,  19  Md.  3.;4 ;   Clark 
V.  State,  12  Ohio,  483  ;  Doe  v.  Reagan, 
5  Blaekf.   217;  Beaubien    v.   Cicotte, 
12  Mich.  459;  Clary  i'.  Clary,   2   Ired. 
L.   78  ;   Powell  v.   State,  25  Ala.  21  ; 
Stuckey  c.  Bellah,  41  Ala.   700;  Wil- 
kinson V.  Moseley,  30  Ala.  5G2  ;  Bald- 
win   I'.   State,  12  Mo.   223  ;   Dove  v. 
State,  3   Ileisk.  348;  People  i'.  San- 
ford,  43  Cal.  29. 

417 


§  451.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


urally  more  likely  to  attract  confidence  than  are  the  speculative 
conclusions  of  experts,  even  though  the  latter  have  paid  the 
party  occasional  visits.^  By  non-experts,  it  is  said,  opinions  can- 
not be  given  detached  from  the  facts  on  which  they  rest ;  ^  but 
this  distinction  amounts  to  little,  since  experts,  no  matter  how 
authoritative,  are  required,  if  asked,  to  give  the  facts  on  which 
their  opinions  rest.^  The  distinction  as  to  hypothetical  cases, 
however,  is  well  founded  ;  and  as  to  these  it  is  clear  a  layman,  or 
even  an  expert  without  special  cultivation,  cannot  be  asked.*  But 
while  an  expert  who  has  personally  visited  a  patient  can  unques- 
tionably be  asked  for  his  opinion  as  to  the  patient's  sanity  ;  ^  his- 
conclusions  must  be  drawn  from  direct  observation,  not  from  the 
reports  of  others.^  As  to  whether  a  party  at  a  given  time  was 
intoxicated,  non-experts  as  well  as  experts  can  speak.'^ 


1  Rutherford  v.  Morris,  77  111.  397  ; 
Rankin  v.  Rankin,  61  Mo.  295. 

As  limiting  non-experts  to  a  bare 
statement  of  facts,  see  State  v.  Pike, 
49  N.  H.  399;  Com.  v.  Wilson,  1 
Gray,  337;  Dewitt  v.  Barley,  5  Sel- 
den,  371  ;  Clapp  v.  Fullerton,  34  N. 
Y.  190;  Real  v.  People,  42  N.  Y.  270; 
Sears  i'.  Schafer,  1  Barb.  408  ;  Hig- 
gins  V.  Carlton,  28  Md.  115;  Riinyan 
V.  Price,  15  Oh.  St.  1;  Farrell  v. 
Brennan,  32  Mo.  328  ;  Gehrke  v. 
State,  13  Tex.  568.  From  this  limi- 
tation, however,  subscribing  witnesses 
are  excepted.  Ware  i\  Ware,  8 
Greenl.  42 ;  Poole  v.  Richardson,  3 
Mass.  330;  Logan  v.  McGinnis,  12 
Penn.  St.  27;  Titlow  v.  Titlow,  54 
Penn.  St.  216  ;  Egbert  v.  Egbert,  78 
Penn.  St.  326  ;  Elder  v.  Ogletree,  36 
Ga.  64. 

2  Poole  V.  Richardson,  3  Mass.  330 ; 
Hathorn  v.  King,  8  Mass.  371;  Dick- 
enson V.  Barber,  9  Mass.  225 ;  Kinne 
V.  Kinne,  9  Conn.  102 ;  Vanauken's 
case,  2  Stockt.  Ch.  186 ;  Lowe  v.  Wil- 
liamson, 1  Green.  Eq.  82;  Sloan  v. 
Maxwell,  2  Green.  Eq.  563;  Gardiner 
V.  Gardiner,  34  N.  Y.  155;  Sisson  v. 
Conger,  1  Thomp.  &  C.  564  ;  Clapp  (,-. 
Fullerton,  34  N.  Y.   190;  Rambler  v. 

418 


Tryon,  7  Serg.  &  R.  90  ;  Bricker  v. 
Lightner,  40  Penn.  St.  199;  Gibson 
V.  Gibson,  9  Yerger,  329;  Dorsey  v. 
Warfield,  7  Md.  65 ;  Doe  v.  Reagan,  5 
Blackf.  217;  Potts  v.  House,  6  Ga. 
324;  Dicken  v.  Johnson,  7  Ga.  484; 
Walker  v.  Walker,  14  Ga.  242 ;  John- 
son V.  State,  17  Ala.  618;  Farrell  v. 
Brennan,  32  Mo.  328. 

^  Stackhouse  v.  Horton,  15  N.  J. 
Eq.  202  ;  White  v.  Bailey,  10  Mich. 
155. 

*  Com.  V.  Rich,  14  Gray,  335; 
State  V.  Klinger,  46  Mo.  228 ;  Caleb 
V.  State,  39  Miss.  722. 

5  R.  V.  Searle,  1  Mood.  &  R.  75; 
R.  V.  OfTord,  5  C.  &  P.  168;  Cora.  v. 
Rogers,  7  Mete.  (Mass.)  500;  Baxter 
V.  Abbott,  7  Gray,  71;  Delafield  v. 
Parish,  25  N.  Y.  9;  Clark  v.  State,  12 
Ohio,  483;  Choice  v.  State,  31  Ga. 
424. 

6  Heald  v.  Thing,  45  Me.  392. 

■f  State  V.  Pike,  49  N.  H.  399;  Ga- 
hagan  v.  R.  R.  1  Allen,  187;  People 
V.  Eastwood,  14  N.  Y.  562;  Stanley  v. 
State,  26  Ala.  26. 

On  an  issue  as  to  the  sanity  of  a 
testator,  it  was  proposed  to  tender  a 
letter  (purporting  to  be  from  the  tes- 
tator) to  a  medical  witness,  and  ask 


CHAP.  VIII.] 


WITNESSES  :   EXPERTS. 


[§  452. 


§  452.  The  better  opinion  is  that  an  expert  cannot  be  asked 
his  opinion  as  to  the  evidence  in  the  case  as  rendered,  Experts 
not  only  because  this  puts  the  expert  in  the  phice  of  the  "mmed  m' 
jury,  in  determining  as  to  tlie  credibility  of  the  facts  ^9^  ''.3'P°" 
in  evidence,  but  because  the  relief  thus  afforded  is  in  case, 
most  trials  only  illusory,  experts  being  usually  in  conflict ;  and 
the  duty  devolving  on  court  and  jury,  of  supervising  the  reasoning 
of  experts,  being  one  which  can  be  rarely  escaped.^  It  has  been 
said,  however,  that  when  the  facts  are  undisputed,  the  opinion  of 
an  expert  can  be  asked  as  to  the  conclusions  to  be  drawn  from 
them ;  ^  and  it  is  now  settled  that  experts  of  all  classes  may  he 
asked  as  to  a  hypothetical  case.^  Thus,  shipwrights  have  been 
examined  as  to  the  seaworthiness  of  a  ship  in  a  particular  condi- 
tion,* and  sailors  whether  a  certain  mode  of  navigation  was  pru- 
dent in  an  assumed  state  of  facts.^  So  an  expert  as  a  driver 
may  be  asked  as  to   the  number  of  persons  necessary  to  drive 


him  whether  the  writer  of  such  a  let- 
ter could  be  of  sound  mind.  Martin, 
B.,  held  that  this  could  not  be  done; 
but  that  the  letter  must  first  be  proved 
to  be  in  the  testator's  writing,  and 
that  the  witness  might  then  be  asked 
if  it  was  a  rational  letter.  Sharpe  v. 
Macaulay,  Western  Circuit,  1856, 
MS.;  Powell's  Evidence  (4th  ed.), 
99. 

1  R.  V.  Higginson,  1  Car.  &  K.  129; 
Sills  V.  Brown,  9  C.  &  P.  604;  R.  v. 
Frances,  4  Cox  C.  C.  57;  R,  v.  Rich- 
ards, 1  F.  &  F.  87;  Dexter  v.  Hall, 
15  Wall.  9  ;  Wiliey  v.  Portsmouth,  35 
N.  H.  303;  Perkins  v.  R.  R.  44  N.  H. 
223;  Woodbury  v.  Obear,  7  Gray,  467; 
Miller  v.  Smith,  112  Mass.  475  ;  Dra- 
per V.  Saxton,  118  Mass.  431 ;  Brill  v. 
Flagler,  23  Wend.  354;  People  v.  Mc- 
Cann,  3  Parker,  C.  R.  272;  State  v. 
Powell,  2  Ilalst.  244;  Kempscy  r.  Mc- 
Ginniiis,  21  ]\Iich.  123;  Bisliop  v.  Spin- 
ing,  38  Irid.  143;  Phillips  v.  Starr,  26 
Iowa,  349;  State  v.  Medlicott,  9  Kans. 
257;  Choice  v.  State,  31  Ga.  424. 

a  McNaghton's  case,    10  CI.  &   F. 


200,  211,  212;  1  C.  &  K.  135  ;  though 
see  R.  V.  Frances,  4  Cox  C.  C.  57. 

8  Dexter  v.  Hall,  15  Wall.  9;  U.  S. 
V.  McGlue,  1  Curtis,  1 ;  Sills  v.  Brown, 
ut  supra  :  Spear  v.  Richardson,  3  7  N. 
H.  23;  Fairchild  v.  Bascomb,  35  Vt. 
398;  Woodbury  v.  Obear,  7  Gray, 
467;  Erickson  v.  Smith,  2  Abb.  N. 
Y.  App.  64 ;  Hoard  v.  Peck,  56  Barb. 
202;  Carpenter  v.  Blake,  2  Lans.  206; 
State  V.  Winsor,  5  Harring.  (Del.) 
512;  Choice  v.  State,  31  Ga.  424; 
Davis  V.  State,  35  Ind.  496;  Bishop  v. 
Spining,  38  Ind.  143;"Wright  v.  Hardy, 
22  Wise.  348;  Crawford  v.  Wolf,  29 
Iowa,  567;  Wilkinson  r.  Moseley,  30 
Ala.  562;  State  v.  Klingler,  46  Mo. 
224  ;  Tingley  v.  Cowgill,  48  Mo.  291; 
North  Mo.  R.  R.  V.  Akers,  4  Kans. 
453;  Dove  v.  State,  3  Ileisk.  348;  and 
cases  cited  in  prior  notes  to  this  sec- 
tion as  to  insanity. 

*  Beckwith  v.  Sydebotham,  1  Camp. 
116. 

6  Fen  wick  v.  Bell,  1  C.  &  K.  312: 
Malton  V.  Nesbit,  1  C.  &  P.  72. 

419 


§  454.]  THE   LAW    OF   EVIDENCE.  [BOOK  II. 

a  certain  number  of  mules. ^  But  if  the  facts  on  which  the 
hypothesis  is  based  fall,  the  answer  falls  also.^  Nor  can  an  ex- 
pert be  asked  as  to  an  hypothesis  having  no  foundation  in  the 
evidence  in  the  case,^  or  resting  upon  statements  made  to  him 
by  persons  out  of  court.* 

§  453.  It  has  been  already  stated  that  the  general  distinction 
Expert  between  the  expert  and  the  non-expert  is,  that  the 
piamTi's  former  gives  opinions,  the  latter  ordinarily  only  facts, 
opinion  in     j^  ^g  ^  mistake,  however,  to  suppose  that  an  expert 

his  exami-  _  '  '  .  ,  .    . 

nation.  cannot  give  the  reasoning  on  which  his  opinions  rest. 
It  is  his  duty  to  give  such  reasoning,  when  necessary  to  explain 
his  opinions  ;  and  he  may  do  so  in  his  examination  in  chief.^  Be- 
yond this  he  cannot  go  in  such  examination  ;  ^  though  he  may  be 
fully  examined  in  details  in  order  to  test  his  credibility  and  judg- 
ment." Even  on  a  reexamination,  he  may  be  permitted  to  give 
explanations  of  facts  occurring  since  his  examination  in  chief.^ 

§  454.  When  expert  testimony  was  first  introduced,  it  was 
„    .  regarded  with  great  respect.     An  expert,  when  called 

of  expert'  as  a  witness,  was  viewed  as  the  representative  of  the 
ousiy  scru-  science  of  which  he  was  a  professor,  giving  impartially 
its  conclusions.  Two  conditions  have  combined  to  pro- 
duce a  material  change  in  this  relation.  In  the  first  place,  it  has 
been  discovered  that  no  expert,  no  matter  how  incorrupt,  speaks 
for  his  science  as  a  whole.  Few  specialties  are  so  small  as  not  to 
be  torn  by  factions ;  and  often,  the  smaller  the  specialty,  the  bit- 
terer and  the  more  inflaming  and  distorting  are  the  animosities 
by  which  these  factions  are  possessed.  Peculiarly  is  this  the 
case  in  matters  psychological,  in  which  there  is  no  hypothesis  so 
monstrous  that  an  expert  cannot  be  found  to  swear  to  it  on  the 
stand,  and  to  defend  it  with  vehemence  when  off  the  stand.  "•  Ni- 
hil tam  absurde  dici  potest,  quod  non  dicatur  ab  aliquo  philoso- 
phorum."  ^  In  the  second  place  the  retaining  of  experts,  by  a 
fee  proportioned  to  the  importance  of  their  testimony,  is  now,  in 

1  North  Mo.  R.  R.  v.  Akers,  4  Kans.  «  Ingledew  v.  R.  R.  7  Gray,  86. 
453.  '  Sliaw  V.  Charlestown,  2  Gray,  107; 

2  Hovey    V.    Chase,    52    Me.    304;  Hunt  v.  Lowell,  8  Allen,  169. 
Thayer  v.  Davis,  38  Vt.  163.  ^  Farmers'  Bk.  v.  Young,  3G  Iowa, 

8  Muldowney  v.  R.  R.  39  Iowa,  615.     45. 
*  Heald  v.  Thing,  45  Me.  392.  »  Cic.  de  Div.  ii.  58. 

'  Keith  V.  Lothrop,  10  Cush.  453. 
420 


CHAP.  VIII.]  WITNESSES  :    EXPERTS.  [§  454. 

cases  in  whicli  they  are  required,  as  customary  as  is  the  retain- 
ing of  lawyers.  No  court  would  take  as  authority  the  sworn 
statement  of  the  law  given  by  counsel,  retained  on  a  particular 
side,  for  the  reason  that  the  most  high-minded  men  are  so  swayed 
by  an  emplojnnent  of  this  kind  as  to  lose  the  power  of  impartial 
judgment  ;  and  so  intense  is  this  conviction  that  there  is  no 
civilized  community  in  which  the  reception  of  a  present  from  a 
suitor  does  not  only  disqualify  but  disgrace  a  judge.  Hence  it  is 
that,  apart  from  the  partisan  temper  more  or  less  common  to 
experts,  their  utterances,  now  that  they  have  as  a  class  become 
the  retained  agents  of  parties,  have  lost  all  judicial  authority, 
and  are  entitled  only  to  the  weight  which  a  sound  and  cautious 
criticism  would  award  to  the  testimony  itself.^  In  adjusting  this 
criticism,  a  large  allowance  must  be  made  for  the  bias  necessarily 
belonging  to  men  retained  to  advocate  a  cause,  who  speak,  not 
as  to  fact.,  but  as  to  opinion  ;  and  who  are  selected,  on  all  moot 
questions,  either  from  their  prior  advocacy  of,  or  from  their  read- 
iness to  adopt,  the  opinion  to  be  proved.  In  this  sense  we  may 
adopt  the  strong  language  of  Lord  Campbell,  that  "  skilled  wit- 
nesses come  with  such  a  bias  on  their  minds  to  support  the 
cause  in  which  they  are  embarked,  that  hardly  any  weight 
should  be  given  to  their  evidence."  ^ 

^  See,  to  this  effect,  Neal's  case,  cited  tific  investigations    was  witnessed  in 

1  Redfield   on    Wills,   ch.   iii.   §    13  ;  the    last   case   tried   by   Mr.   Justice 

Wo  )druff,  J.,  Gay  r.  Ins.  Co.  2  Big.  Jones  in  the  superior  court  in  this  city, 

Life  Ins.  Cases,  14;  Brehm  v.  R.  R.  34  being  the  case  in  which  the  house  of 

Barb.  2o6;  Grigsby  v.  Water  Co.  40  J.    &  J.    Coleman    established    their 

Cal.  396;  Watson  ?;.  Anderson,  13  Ala.  right  to  a  bull's  head  as  their  trade- 

202;   1  Whart.  &  St.  Med.Jur.  (1873)  mark  on  mustard.     Professor  X.,  one 

§§  190,  269;  Whart.  Cr.  Law,  7th  ed.  of    the    most     celebrated     analytical 

§§  50  el  seq.     See,   also,  1  Am.  Law  chemists    of    New    York,   a    witness 

Rev.  45,  for  a  learned  article  on  this  called  by  the  defendant,  had  alleged, 

topic  by  Prof.  Washburn.  as  the  result  of  his   experiments,  that 

-  Tracy  Peerage,  10  CI.  &  Fin.  191.  mustard    contained    over    eleven    per 

See,  also,  Winans  v.   R.    R.  21   How.  cent,  of  starch. 
101.  "  Two  other  analytical  chemists,  one 

"  The  conflict  of  testimony  between  of  them  Professor  Chandler,  of  Colum- 
scientific  men  in  judicial  investiga-  bia  College,  alleged  that  mustard  con- 
tions  has  often  been  the  subject  of  re-  tained  no  starch.  The  evidence  was 
mark.  A  noted  instance  of  such  con-  in  this  conflicting  condition  when  both 
flict  is  now  presented  in  the  Wharton  parties  rested,  and  the  case  was  ad- 
murder  trial.  A  striking  instance  of  journed  until  the  next  morning  for  ar- 
an  unexpected  source  of  error  in  scicn-  gument.     In  the  mean  time  Professor 

421 


§  455.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


§  465.  The  practice  has  been  to  receive  for  what  it  is  worth 
Es  eciailv  *^^^  testimony  of  an  expert,  when  his  observations  are 
when  ob-      made  ex  parte,  as  when  a  chemist  sent  by  one  party, 

servations  .  .  ,  .  .i  ,i  i^ 

are  ex         examines,  without  notice  to  the  other  party,  remains 
^"'^'^'  supposed  to  contain  poison,  or  a  physician  is  taken  by 


X.  applied  to  the  counsel  of  the  de- 
fendant to  move  to  so  far  open  the 
case  as  to  allow  him  to  vindicate  by 
actual  experiment  in  open  court,  the 
correctness  of  his  statement  as  to  ex- 
istence of  starch  in  mustard.  The 
motion  was  made  and  granted,  and  on 
the  5th  of  December  last  the  court 
room  presented  the  appearance  of  a 
chemical  laboratory.  The  professor, 
with  his  assistant,  prepared  mustard 
for  experiment  in  open  court  by  pound- 
ing the  seed  in  a  mortar.  He  placed 
the  crushed  seed  in  distilled  water, 
and  boiled  the  mixture  over  a  spirit 
lamp.  He  then  threw  some  of  the  so- 
lution on  sheets  of  filtering  paper,  and 
applied  his  chemical  test,  and  exhib- 
ited to  the  court  on  the  paper  the 
characteristic  blue  iodide  of  starch. 
The  experiment  was  varied  many  ways 
with  the  same  result,  and  at  the  end 
of  the  testimony  many  sheets  of  paper 
were  thus  colored.  The  demonsti'a- 
tion  seemed  perfect.  On  Professor 
Chandler  being  called  to  the  stand,  he 
made  experiments  which,  in  his  view, 
demonstrated  that  starch  did  not  exist 
in  mustard,  and  stated  that  he  was  not 
satisfied  with  the  experiments  that  had 
been  made  by  the  defendant's  witness. 
" '  Why,'  said  the  defendant's  coun- 
sel, '  are  you  not  satisfied  with  the 
reaction  for  starch  exhibited  by  Dr. 
X.  on  the  dozen  or  more  sheets  of 
filtering  paper?  ' 

'"  I  am  not  certain,  to  begin  with,' 
said  Professor  Chandler,  '  that  the 
paper  would  not  have  produced  that 
reaction  without  the  mustard.'  Where- 
upon the  counsel  handed  to  the  wit- 
ness  some  of   the   clean   paper,   and 

422 


asked  him  to  apply  the  test  to  it  him- 
self. He  did  so,  and  the  result  was  a 
deep  blue,  thus  showing  the  illusory 
nature  of  the  prior  tests,  and  that  the 
experiment  was  entirely  worthless  as 
proof  that  starch  was  contained  in 
mustard. 

"  Now  here  was  a  chemist  of  great 
learning  and  experience,  pledging 
himself  under  oath  to  the  presence  of 
starch  in  mustard,  exhibiting,  in  the 
frankest  way,  his  experiments  in  open 
court,  and  in  the  presence  of  eminent 
chemists,  and  producing  as  the  result 
the  characteristic  blue  which  conced- 
edly  demonstrated  the  presence  of 
starch.  If  the  question  of  life  or  death 
depended  on  this  testimony  could  a 
jury  have  been  in  doubt?  and  yet,  by 
oversight,  a  vital  element  in  the  prob- 
lem had  been  overlooked.  The  thing 
sought  for  was  not  in  the  substance 
analyzed,  but  in  the  paper  on  which 
for  convenience  it  had  been  poured." 
N.  Y.  Evening  Post,  Jan.  17,  1872. 

To  cases  of  litigated  handwriting, 
the  remarks  which  have  just  been 
made  are  peculiarly  applicable,  and 
will  hereafter  be  distinctively  dis- 
cussed. Infra,  §  722.  An  expert, 
however,  is  privileged  as  to  his  an- 
swers, however  wild  or  prejudiced,  so 
far  as  concerns  liability  to  a  civil  suit. 
Seaman  i'.  Netherclift,  L.  R.  1  C.  P. 
D.  540,  cited,  infra,  §  722. 

The  scholastic  jurists,  regarding 
experts  as  assessors  called  upon  to 
state  results  dependent  upon  reason- 
ing out  of  the  power  of  the  court  to 
follow,  treated  the  conclusions  given 
by  the  expert  as  unassailable  facts. 
These  conclusions    the   court,  if    the 


CHAP.  VIII.] 


WITNESSES  :    EXPERTS. 


[§  455. 


one  party,  also  without  notice  to  the  other  party,  to  visit  a  pa- 
tient whose  sanity  is  in  dispute.  In  cases  such  as  these,  expert 
testimony  is  entitled  to  little  respect,  and  is  likely,  if  the  obser- 
vations be  suiTeptitious  and  clandestine,  to  prejudice  the  party 
under  whose  directions  they  are  made.  Wherever  notice  of 
such  observations  to  the  opposing  interests  is  practicable,  then 
such  notice  should  be  given.  If  not  given,  then  observations  of 
the  expert,  thus  privately  made,  will  be  exposed  to  discredit  if 
not  to  exclusion.! 


expert  Avas  duly  qualified,  was  bound 
to  accept;  and  when  there  was  a  con- 
flict, then  the  conclusions  of  the  ma- 
jority Avere  to  be  followed.  See,  for 
illustration  of  this,  Masc.  c.  1169; 
and  see  Endemann,  250. 

This  notion,  however,  has  been  long 
abandoned.  Of  course  if  we  could 
conceive  of  experts  speaking  of  a  sci- 
ence whose  processes  are  utterly  out 
of  the  range  of  the  reasoning  powers 
of  the  adjudicating  tribunal,  then  a 
conflict  between  such  experts  is  to  be 
determined  (apart  from  questions  of 
credibility)  just  as  we  would  treat  the 
testimony  of  witnesses  who,  as  to 
matters  equally  probable,  contradict 
themselves  as  to  the  conditions  of  a 
place  which  no  one  but  themselves 
has  visited.  But  there  is  no  science 
whose  processes  are  utterly  out  of  the 
range  of  the  reasoning  powers  of  even 
ordinary  judges  and  juries.  With 
some  specialties,  e.  g.  that  which 
treats  of  insanity  in  its  penal  relations, 
twelve  jurymen,  with  average  sense, 
are  capable  of  being  so  instructed,  by 
evidence  and  argument,  during  the 
trial  of  a  case,  as  to  be  able  to  come 
to  a  conclusion  as  conducive  to  public 
justice  as  would  be  twelve  experts, 
selected  in  the  same  way.  The  same 
may  be  said  as  to  many  mechanical 
sciences  ;  though  in  such  cases  the 
instruction  may  be  tedious  and  labo- 
rious. But,  at  all  events,  the  law  no 
longer  is  that  the  conclusion  given  by 


the  expert  is  binding  on  the  court  or 
jury.  The  grounds  on  which  the  con- 
clusion is  reached  may  be  asked  for; 
the  expert's  capacity  for  drawing  con- 
clusions, as  well  as  his  premises,  may 
be  assailed;  cases  of  conflict  are  to  be 
determined  not  by  the  number  of  the 
witnesses  but  by  the  weight  of  the  tes- 
timony; and  though  the  opinion  of  an 
expert  of  high  character  may  be  en- 
titled to  great  respect,  yet,  if  ques- 
tioned, its  authority  must  ultimately 
rest  upon  the  truth,  material  and  for- 
mal, of  the  reasoning  on  which  it 
depends. 

1  See  Whart.  Cr.  Law,  §  821  h 
(7th  ed.) ;  Heald  v.  Thing,  45  Me.  392; 
Parlange  v.  Parlange,  16  La.  An.  17. 

Judge  Breese,  of  the  Illinois  su- 
preme court,  in  the  recent  will  case 
of  Rutherford  v.  Morris,  8  Chicago 
Legal  News,  94,  thus  speaks  of  experts 
in  will  cases:  "These  doctors  were 
summoned  by  the  contestants  '  as  ex- 
perts,' for  the  purpose  of  invalidating 
a  will  deliberately  made  by  a  man 
quite  as  competent  as  either  of  them 
to  do  such  an  act.  They  were  the 
contestants'  witnesses,  and  so  consid- 
ered themselves.  Tlie  testimony  of 
such  is  worth  but  little,  and  should 
always  be  received  by  juries  and 
courts  with  great  caution.  It  was 
said  by  a  distinguished  judge,  in  a 
case  before  him,  '  if  there  was  any 
kind  of  testimony,  not  only  of  no 
value,  but  even  worse   than  that,  it 

423 


§  458.]  THE    LAW   OF   EVIDENCE.  [BOOK  11. 

§  456.  It  is  not  contrary  to  tlie  policy  of  the  law  that  an  ex- 
Expert  pert  should  be  specially  feed,  so  that  the  testimony  of 
^eciaUy  Competent  scientific  men  can  be  obtained  without  loss 
*eed.  to  themselves.     Even  the  fact,  that  such  a  retainer  ex- 

isted, was  unknown  at  the  time  to  the  opposite  side,  is  no  ground 
for  disturbing  a  verdict.  It  is  for  the  jury,  however,  to  deter- 
mine how  far  the  credibility  of  the  witness  is  affected  by  such 
retainer.  1 

VII.    DISTINCTIVE    RULES   AS   TO   PARTIES. 

§  457.  The  late  changes  in  our  practice,  by  which  parties  may 
By  old  Ro-  be  examined  under  oath,  may  make  it  not  irrelevant  to 
™n"cience  examine  the  provisions  in  the  Roman  law  in  this  rela- 
couid'^br  *^°"*  ^^  ^^  should  appear  that  this  privilege  of  exam- 
probed,  ination  existed  in  the  Roman  practice  to  the  same  ex- 
tent as  it  now  exists  in  our  own,  this  adds  not  a  little  to  the 
authority  of  the  Roman  jurists  on  the  subject  of  presumptions. 
Under  our  old  practice  it  was  frequently  said  that  against  a  party 
whose  mouth  is  shut,  and  who  cannot  explain,  there  can  be  no 
presumption  on  account  of  his  want  of  explanation  ;  and  to  this 
cause  may  be  imputed  not  a  few  of  those  of  our  presumptions  of 
which  the  Roman  law  has  no  trace.  Now,  however,  that  we 
have  opened  the  mouths  of  parties,  we  must  conclude  that  pre- 
sumptions based  on  their  compulsory  silence  no  longer  exist ; 
and  we  have  the  authority  of  the  Roman  law,  supposing  that 
law  to  permit  the  compulsory  examination  of  witnesses,  to  sus- 
tain in  this  respect  our  conclusions.  It  is  important,  therefore, 
in  order  to  determine  the  present  applicability  of  the  Roman 
law  to  this  class  of  presumptions,  to  inquire  what  is  the  Ro- 
man law  as  to  the  examination  of  parties. 

§  458.  In  the  older  Roman  practice,  the  parties  were  accus- 
tomed to  resort,  as  a  mode  of  compromise,  to  an  appeal  to  the  con- 
science, or  juramentum  voluntarium,  by  which  the  one  agreed 
to  abide  by  what  the  other  should  answer  under  oath.  From 
the  juramentum  voluntarium  was  gradually  developed  the  ^wra- 
mentum  necessarium.     The  praetor,  when  either  party  applied 

was,  in  his  judgment,  that  of  medical        ^  People   r.  Montgomery,  13    Abb. 
experts.'"  (N.  Y.)  Pr.  N.  S.  207.    See,  however, 

See,  for  a  more  indulgent  view,  State    Lyon  v.  Wilkes,  1  Cow.  591. 
V.  Porter,  34  Iowa,  131. 
424 


CHAP.  VIII.]  WITNESSES :    PARTIES.  [§  460 

for  an  appeal  of  this  kind,  agreeing  to  be  bound  by  the  result, 
forced  the  other  party  to  answer.  Suits  which  depended  on  the 
knowledge  of  the  parties  themselves,  were  brought  to  a  sum- 
mary conclusion.  The  answers  made  by  a  party,  to  questions 
thus  put  to  him,  may  be  likened  to  answers  to  bills  of  discovery, 
in  the  old  chancery  practice,  supposing  that  on  filing  the  bill  the 
party  asking  for  the  discovery  should  agree  to  be  bound  by  the 
answer.^  An  answer  admitting  a  certain  debt  was  considered 
as  final,  requiring  no  judgment.  Where,  however,  the  admission 
was  of  an  uncertain  debt,  then  process  issued  for  the  assessment 
of  damages,  on  which  process  judgment  was  necessary.^ 

§  459.  It  Avas  not  obligatory  on  the  actor  to  adopt  this  mode 
of  trial.  He  might  proceed,  if  he  thought  proper,  to  substan- 
tiate his  case  by  the  means  hereafter  detailed.  But  if  he  elected 
to  leave  the  decision  to  the  conscience  of  the  opposite  party,  the 
latter  was  bound  either  to  concede  the  claim  or  to  answer  under 
oath.  "Ait  praetor:  'eum,  a  quo  jusjurandum  petetur,  solvere 
ant  jurare  cogam.''  Alteram  itaque  eligat  reus,  aut  solvat  aut 
juret :  si  nonjuret,  solvere  cogendus  erit  a  praetore."  ^  The  party 
asking  for  discovery  was  nonsuited,  as  we  might  say,  if  he  did 
not  disclose  facts  making  out  a  case ;  the  opposite  party,  if  he 
did  not  answer,  had  judgment  taken  against  himby  default.'* 

§  460.  Of  much  greater  importance   to  our  present   inquiry 
was  the  practice  b}^  which  the  Romans  made  the  testi-   b.v  later 
mony  of  the  parties  admissible  in  all  contested  issues.^   exaniiim- 
After  tlie  ordo  j iidiciorum,  as  a  distinct  tribunal,  ceased    <'""  of 

•^  '  '  parties  was 

to  exist,  all  judicial  functions  centred  in  the  magis-  permitted, 
trates,  who  occupied  a  position  similar  to  that  of  equity  judges,  or 
judges  in  common  law  courts  trying  cases  without  juries.  While 
the  ordo  j udiciorum  still  existed,  issues  of  fact,  instead  of  being 
tried  before  the  magistrate  determining  the  law,  as  they  after- 
wards were,  were  sent,  it  will  be  remembered,  to  the  judex,  who 
occupied  a  position  not  unlike  a  master  of  chancery,  to  whom 
the  examination  and  determination  of  facts  is  committed  on  a 
feigned  issue.     But  whatever  was  the  tribmial,  the  jiulge  whose 

1  Sec  L.  34,  §  G.  D.  xii.  2;  L.  5,  §       «  L.  34,  §  C,  xii.  2. 
2.  h.   t.;  Quinctilian,  V.   c.    G;  Ende-        *  S:ivi<,M)y,  Kom.  Korht.  vii.  §  312. 
mann,  Buweislehre,  443.  ^  See   Savigny,  llciin.   Rec-ht.  vii.  § 

3  Puchta,  Inst.  Bd.  ii.  190.  313. 

425 


§  460.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

office  it  was  to  decide  the  case  was  authorized  to  examine,  or  to 
permit  to  be  examined,  either  or  both  of  the  parties.  The  ex- 
amination is  referred  to  as  if  regarded  as  affording  subsidiary 
proof.  1  Certainly  if  a  party  could  make  out  his  case  without 
calling  his  antagonist  as  a  witness,  it  was  not  either  necessary  or 
desirable  that  the  antagonist  should  be  so  called.  But  that  it 
was  a  party's  right  to  make  his  antagonist  a  witness  is  clear ; 
and  it  is  also  clear  that  the  judge  who  at  the  close  of  a  civil  issue 
was  in  doubt  could  interrogate  under  oath  either  of  the  parties. 
This  right  is  expressly  confirmed  by  imperial  decree.^  But  the 
answers  thus  given  under  oath  were  regarded,  not  as  concluding 
the  case,  as  with  the  arbitration  oaths,  but  simply  as  testimony. 
If  a  party,  when  so  examined,  admitted  his  opponent's  claim, 
this  of  course  was  a  ground  of  judgment  against  the  party  mak- 
ing the  admission.  But  where  the  party  made  no  such  admis- 
sion, then  his  testimony  was  to  be  weighed  as  would  the  testi- 
mony of  any  other  witness.^  The  testimony  of  the  party,  when 
thus  examined  on  trial,  was  regarded  as  merely  evidential,  and 
could  be  subsequently  impeached.*  Yet  the  refusal  of  a  party 
to  testify  was  not  ground  for  judicial  action  against  him,  as  it 
was  when  he  refused  to  answer  in  the  arbitration  procedure. 
When  called  as  a  witness  on  the  trial  of  the  case,  he  might  de- 
cline to  be  sworn  ;  and  if  so,  the  court  was  to  determine  the  case 
on  the  evidence  presented,"''  subject  to  the  logical  inferences  to  be 
drawn  from  his  refusal.^  The  refinements  which  wei-e  introduced 
by  the  Italian  and  other  scholastic  jurists  it  is  not  necessary  here 
to  discuss.  It  is  enough  to  say  that  while  admitting  the  right  of 
the  judge  to  examine  the  parties,  they  limited  this  right  to  cases 
where  there  was  an  iriopia  prohationis  ; "'  testimony  so  elicited 
was  announced  to  be  probatio  praesumtiva  or  semi  plena ;^  and  a 
distinction  was  sought  for  in  the  nature  of  the  cases  tried.  In 
causis  arduis  seu  magnis^  a  party  could  not  be  examined ;  ^  wdiile 
as  to  what  constitutes  a  causa  ardua,  or  magna,  a  new  line  of 

^  See  Gaius  in  L.  31,  D.  xii.  2.  sato  juramento  processit.     See  Ende- 

2  See  L,  3,  Cod.  iv.  1.  mann,  448. 

8  See  L.  5,  §  2,  xii.  3.  7  Mascard.  I.  qu.  9,  953,  24. 

*  See  Savigny,  §  313,  p.  83.  «  Durant,  II.  2,  de  prob.  §  3,  nr.  10. 

s  See  L.  12,  §  2,  Cod.  14,  1.  »  Gloss,  in  L.  31.  h.  t.  xii.  2  ;  Pacian, 

"  Ibid.     Sent.,  quae  quasi  ex  recu-  de  prob.  L.  c.  39,  Xo.  19. 

426 


CHAP.  VIII.]  WITNESSES  :   PARTIES.  [§  461. 

subtle  discriminations  was  opened.^  These  refinements  of  the 
schoolmen  were  part  of  a  peculiar  scheme  in  which  their  doctrine 
of  presumptions,  elsewhere  discussed,  formed  the  leading  feature; 
and  their  speculations  on  the  two  topics  are  mutually  dependent. 
The  classical  Roman  law  in  this  relation,  on  the  other  hand,  is 
substantially  the  same  with  that  recently  established  in  most 
Anglo-American  jurisdictions.  It  is  important  to  notice  this 
fact,  not  because  it  helps  us  to  any  direct  authority  as  to  the 
effect  of  testimony  so  obtained,  but  because  it  adds  to  the  logical 
value  of  the  classical  Roman  theory  of  presumptions  which  we 
will  hereafter  discuss.^  In  taking  the  scholastic  doctrine,  that 
the  testimony  of  parties  was  to  be  virtually  rejected,  we  natu- 
rally accepted  the  scholastic  theory  of  presumptions.  When  the 
evidence  of  parties,  and  of  persons  interested,  is  excluded,  then 
we  are  justified  in  taking  the  next  best  evidence,  and  we  may 
be  even  justified,  following  the  schoolmen,  in  constructing  a 
system  of  arbitrarj^  rules  for  our  guidance.  But  if  the  testi- 
mony of  all  parties  interested  is  admitted,  then  we  have  no  need 
to  resort  to  presumptions  based  on  the  hypothesis  of  the  incapacity 
of  the  parties  to  speak,  and  our  examination  of  litigated  facts 
is  to  be  conducted  by  the  ordinary  processes  of  logic.^ 

§  461.  The  testimony  of  a  party  in  his  own  cause,  to  refer 
again  to  the  important  distinction  elsewhere  put,*  may   impor- 
be  either  contractual,  so  as  to  bind  him  directly  to  the   s^,"h\esti- 
opposite  party,  or  strictly  evidential,  as  giving   proof   "^ony. 
of  certain  facts.     A  party,  for  instance,  according  to   the   old 
practice,  in  answer  to  a  bill  of  discovery,  admits  an  obligation  to 
the  opposite  party.     This  admission  concludes  him,  and   judg- 
ment  may  be   taken   against  him  for   the   sum  admitted.     He 
states,  on  the  other  hand,  certain  facts,  from  which  inferences 
unfavorable  to  him  may  be  drawn.     These  facts  are  simply  evi- 
dential ;  and  on  the  trial   of  the  cause  he  is  entitled  to  prove 
other  facts  which  tend  to  modify  the  inference  drawn  from  the 
facts  stated  in  his  answer.     So  with  regard  to  the  testimony  of  a 
party,  when  examined,  either  on  the  trial,  or  according  to  the 
practice  which   has  been   recently  introduced   in  many  of  our 

^  For  instance,    an    actia  famosa,  '  See   this   ably   argued  in  Eude- 

spiritualis,    is   ardua.      See   Masc.   c.  mann's  Bewcislolire. 

956;  Endeniann,  456.  *  Sec  infra,  §§  920,  1082. 

"^  Infra,  §  1227  et  seq.  427 


§  463.]  THE  LAW   OF   EVIDENCE.  [BOOK  II. 

states,  under  rule  of  court,  as  preliminary  to  trial.  In  such 
testimony  he  may  either  concede  to  the  opposite  party  the 
whole  or  part  of  the  latter's  claim,  or  he  may  testify  to  certain 
facts  from  which  inferences  may  be  drawn,  subject  to  the  qualifi- 
cations above  stated  in  reference  to  bills  of  discovery.  As  to  the 
first  of  these  offices  of  a  party's  testimony,  it  must  be  remem- 
bered that  every  person  has  a  right  to  dispose  of  his  own  prop- 
erty, and  the  more  solemn  the  mode  of  disposal,  the  more  com- 
plete is  its  juridical  effectiveness.  And  no  mode  of  disposition 
can  be  more  solemn  than  that  of  the  deliberate  answer,  under 
oath,  of  a  party  when  examined  by  his  opponent  in  a  court  of 
justice.  It  is  true  that  such  an  admission  may,  as  we  will  after- 
wards see,  be  withdrawn  on  proof  of  fraud  or  mistake.  But  if 
not  so  withdrawn,  it  is  a  confessio  in  jure^  operating  as  an  assign- 
ment of  so  much  of  the  party's  i-ights  as  are  thereby  involved, 
and  forming  in  itself  ground  for  a  judgment  of  the  court.^ 

§  462.  We  must  therefore  conclude  that  oaths  taken  in  a  cause 
Oaths  b  ^y  ^  party  have  a  distinct  quality  not  imputable  to 
parties         oaths  taken  bv  witnesses.     A  party  who,  either  volun- 

haveoblig-  .  ,  -^  .  ,     . 

atory  as  tarily  or  involuntarily,  makes  an  oath  m  a  cause,  may, 
evidential  wlicu  he  testifies  as  to  a  contract  made  with  the  other 
^'^^^'  party,  estop  himself   by  the  statements  so  made.     He 

files,  for  instance,  when  sued  on  a  note,  an  affidavit  of  defence ; 
and  in  this  affidavit  he  makes  certain  admissions.  By  these 
admissions  he  is  afterwards  contractually  bound  to  the  opposite 
party,  for  the  reason  that  when  he  appears  in  a  case,  he  enters 
into  privity  with  the  opposite  party,  and  is  bound  to  such  party 
afterwards  by  his  concessions.  The  attaching  of  the  oath  to  such 
concessions,  not  only  contributes  their  precision  and  their  solem- 
nity, but  establishes  them  among  the  fixed  landmarks  by  which 
the  juridical  relations  of  the  parties  are  to  be  subsequently 
determined. 

§  463.  We  now  turn  to  the  English  and  American  statutes 

removing  the  common  law  disability  of  parties ;  and 
not  expos*    the  first  observation  to  be  made  is  that  these  statutes 

are  not  ex  post  facto,  or  obnoxious  to  the  constitutional 
sanctions  prohibiting  laws  impairing  contracts.  Such  statutes 
touch  remedies,  not  rights.^ 

1  Infra,  §§488,  1110-19.  a  Hubbell's  case,  4   Ct.  of  Claims, 

428 


CHAP.  VIII.] 


WITNESSES:   PARTIES. 


[§  464. 


§  464.  The  statutes   are  remedial ;   and  their  operation  will 
not  be  limited  by  a  technical  closeness  of  construction. ^    Such  stat- 
Tlius  the  federal  statute  is  held  to  apply  to  cases  in    ifi^g*.a°iy® 
which  the  United  States  is  a  party  ;  ^  to  cases  in  chan-   construed, 
eery  ;^  to  cases  where  a  guardian  is  party  to  a  suit  involving  his 
accounts  ;  *    to  cases  where  an  executor  is  a  party  unless  he  be 
specifically  excluded ;  ^  to  cases  where  a  corporation  is  a  party  .^ 
The  object  of  the  statutes  is  to  remove  all  artificial  restraints  on 
competency ;  and  in  the  promotion  of  this  object,  beneficent  as 
it  is,  the  courts  are  bound  to  unite." 


37;  Smyth  v.  Balch,  40  N.  H.  363; 
Van  Yalkenbergh  v.  Bank,  23  N.  J.  L. 
583;  Walthall  v.  Walthall,  42  Ala.  450. 
See  Kimball  v.  Baxter,  27  Vt.  628. 

1  Tayne  v.  Gray,  56  Me.  317;  Hos- 
mer  v.  Warner,  15  Gray,  46  ;  Dela- 
mater  v.  People,  5  Lansing,  332  ; 
Nourry  v.  Lord,  3  Abb.  (N.  Y.)  App. 
392;  Jones  v.  Jones,  36  Md.  447; 
Rison  V.  Cribbs,  1  Dill.  181  ;  Young 
V.  Bank,  51  111.  73;  Home  v.  Young, 
40  Ga.  193;  Brand  v.  Abbott,  42  Ala. 
499;  Fugate  v.  Tierce,  49  Mo.  441; 
State  V.  Dee,  14  Minn.  35  ;  Potter  v. 
Menasha,  30  Wise.  492.  See  Good- 
erich  v.  Allen,  19  Mich.  250. 

2  Green  v.  U.  S.  9  Wall.  655  ;  U. 
S.  V.  Cigars,  1  Woolvv.  123. 

«  Rison  V.  Cribbs,  1  Dill.  181. 

*  Bogia  V.  Dardcn,  45  Ala.  269. 

5  Johnson  v.  Ileald,  33  Md.  352. 

8  Carr  v.  Lis.  Co.  3  Daly,  160. 

'  Under  the  federal  statutes  "  in  the 
courts  of  the  United  States,"  to  adopt 
the  language  of  Chief  Justice  Waite, 
"  parties  are  put  upon  a  footing  of 
equality  with  other  witnesses,  and 
are  admissible  to  testify  for  them- 
selves and  compellable  to  testify  for 
others."  New  Jersey  R.  R.  Co.  v. 
Pollard,  22  Wall.  350;  citing  Texas 
V.  Chiles,  21  Wall.  488. 

As  to  tlie  adoption  by  the  federal 
courts  of  the  state  statutes,  sec  Bean, 
in  re,  2  Weekly  Notes,  432. 

The  Enirlish  statutes  are  thus  re- 


capitulated by  Mr.  Powell  :  "  Lord 
Denman's  act  left  actual  parties  to  the 
record  incompetent  witnesses.  This 
disability  was  removed  by  the  14  &  15 
Vict.  c.  99  (the  Law  of  Evidence 
Amendment  Act).  Finally  came  the 
Law  of  Evidence  Further  Amendment 
Act,  1869,  32  &  33  Vict.  c.  68,  which 
abolished  the  two  exceptions  retained 
by  the  14  &  15  Vict.  c.  99.  After 
repeating  the  4th  section  of  the  last 
mentioned  act,  the  Act  of  18G9  renders 
(sect.  2)  the  parties  to  actions  for 
breach  of  promise  of  marriage  compe- 
tent witnesses.  The  uncorroborated 
testimony  of  the  plaintiff'  is,  however, 
not  to  be  sufficient  proof  of  a  promise 
to  marry  to  entitle  the  jury  to  give  a 
verdict  for  the  plaintiff;  his  or  her 
testimony  must  be  corroborated  by 
some  material  evidence  in  support  of 
the  alleged  promise.  The  3d  section 
of  this  act  renders  the  parties  to  pro- 
ceedings instituted  in  consecpicnce  of 
adultery,  and  the  husbands  and  wives 
of  sucli  parties,  competent  witnesses ; 
with  the  proviso  that  no  witness  to  any 
proceeding,  wliether  a  party  or  not,  is 
to  be  liable  to  be  asked  or  bound  to 
answer  any  question  tending  to  show 
that  he  or  she  has  been  guilty  of  adul- 
tery, unless  such  witness  has  already 
given  evidence  in  the  same  proceed- 
ing in  disproof  of  such  adultery. 
The  great  aim  of  the  legislature  would 
seem  to  have  been  to  enable  persons 

42<) 


§  465.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


§  465.  Under  the  statutes,  a  party  may  have  his  deposition  taken, 
as  well  as  be  examined  vivd  voce  in  court.^     Hence,  the 
deposition  of  a  party  taken  so  as  to  be  admissible  in  a 
pending  suit,  is  admissible  in  a  subsequent  suit  between 
the  administrators  of  the  parties  as  to  the  same  subject  matter.^ 


Statutes 
cover  depo 
sitions. 


charged  with  adultery  in  the  divorce 
court  to  deny  the  charge  on  oath. 
This  is  effected  by  making  such  per- 
sons competent  witnesses.  In  the 
measure  as  originally  brought  into 
the  house  of  commons,  the  parties 
were  to  be  compellable  as  well  as 
competent.  To  this  two  objections 
were  raised  :  1st.  That  it  would  in- 
duce parties  to  institute  proceedings 
on  very  slender  grounds,  in  the  ex- 
pectation of  being  able  to  elicit  some- 
thing in  cross-examination  of  the  re- 
spondent or  co-respondent  to  establish 
their  case.  2d.  That  an  adulteress  or 
adulterer  would  be  very  much  tempted 
to  commit  perjury  to  screen  the  part- 
ner in  guilt.  In  deference  to  these 
objections,  the  above  mentioned  pro- 
viso was  added  to  the  3d  section. 

"  One  question  presents  itself  upon 
these  two  sections,  —  are  the  parties 
to  an  action  for  breach  of  promise  of 
marriage,  and  to  proceedings  insti- 
tuted in  consequence  of  adultery,  com- 
pellable as  well  as  competent  witness- 
es ?  Prima  facie  every  witness  who 
is  competent  is  also  compellable,  unless 
some  privilege  intervenes,  and  there- 
fore it  may  be  assumed  that  the  proper 
construction  to  be  placed  upon  these 
sections  is,  that  the  parties  mentioned 
are  compellable  as  well  as  competent, 
except  when  they  can  claim  the  pro- 
tection of  the  proviso  to  section  3.  In 
fact,  no  doubt  would  present  itself  but 


for  the  language  of  section  2,  of  14  & 
15  Vict.  c.  99,  which  enacts,  that  the 
parties  to  any  action  (except  as  there- 
inafter excepted)  shall  '  be  competent 
and  compellable  to  give  evidence.' 
The  words  'and  compellable,'  how- 
ever, would  seem  to  be  mere  surplus- 
age. The  following  points  have  been 
decided  on  the  construction  of  this 
act,  so  far  as  it  affects  proceedings 
instituted  in  consequence  of  adultery. 
The  act  does  not  apply  to  a  petition 
presented  by  a  husband  for  payment 
of  money  out  of  court  on  the  ground 
of  his  child  having  been  bastardized 
by  his  wife's  adultery.  Re  liideout's 
Trusts,  L.  R.  10  Eq.  43  ;  39  L.J.  Ch. 
192.  If  a  witness  does  not  claim  the 
protection  given  by  the  3d  section, 
neither  of  the  parties  to  the  suit  can 
object  to  the  evidence ;  Hebblethwaite 
V.  Hebblethwaite,  L.  R.  2  P.  &  D.  29; 
39  L.  J.  P.  &  M.  15;  and  a  witness 
cannot  be  cross-examined  as  to  any 
act  of  adultery  not  referred  to  in  the 
examination  in  chief.  Babbage  v. 
Babbage,  L.  R.  2  P.  &  D.  222.  Any 
discussion  as  to  the  testimony  of  in- 
terested witnesses  cannot  be  more  ap- 
propriately closed  than  by  quoting  the 
remarks  of  Lord  Justice  James,  when 
vice-chancellor  (Pike  v.  Nicholas,  17 
W.  R.  845;  38  L.  J.  Ch.  529)  :  'It 
has  been  pressed  on  me  that  I  cannot 
decide  against  the  positive  oath  of  the 
respondent,  without  convicting  him  of 


1  Cornett   v.    Williams,    20    Wall.  ^  Collins   v.    Smith,    78   Penn.    St. 

226  ;  New  Jersey  R.  R.  v.  Pollard,  22  423.     See,  also,  as  to  notes  of  testi- 

Wall.   350;    Nichols    v.    Allen,    112  mony,  Evans  v.   Reed,   78  Penn.  St. 

Mass.  23  ;  Bourgette  v.  Hubinger,  30  415,  and  supra,  §  178. 
Ind.  296. 

430 


CHAP.  VIII.] 


WITNESSES  :   PARTIES. 


[§  466. 


§  466.  In  most  of  the  statutes  cases  are  excepted  where  a  suit 
is  against  executors  or  administrators,  in  which  cases  the   cases 
surviving  party  to  a  contract  is  not  permitted  to  testify  ;    oth^T^oQ. 
or,  as  it  is  sometimes  put,  cases  in  which  one  of  the    "'''cting 

'  .  .  pariy  13 

parties  to  a  contract  is  dead,  in  which  cases  the  other   dtad. 


wilful  and  corrupt  perjury.  I  have 
had  occasion  more  than  once  to  say 
that  this  is  not  a  criminal  court:  that  I 
am  trying  no  one  for  any  crime.  I  am 
here  bound  by  my  own  judicial  oath 
to  well  and  truly  try  the  issue  joined 
between  the  parties,  and  a  true  ver- 
dict give  accordingly  to  the  evidence; 
that  is  to  say,  according  as  I,  weigh- 
ing all  the  evidence  by  all  the  lights  I 
can  get,  and  as  best  I  may,  find  the 
testimony  credible  or  incredible,  trust- 
worthy or  the  reverse.  The  law  which 
admitted  the  testimony  of  the  parties 
and  of  interested  persons  was  passed 
in  full  reliance  on  the  judges  and  on 
juries  that  they  would  carefully  scru- 
tinize such  testimony  and  give  it  such 
weight  as  it  deserved,  and  no  more, 
or  no  weight  at  all.'  Powell's  Evi- 
dence, 4th  ed.  39. 

"  The  concluding  words  of  the  3d 
section  of  the  14  &  15  Vict.  c.  99,  de- 
clare that  nothing  contained  in  the  act 
'  shall  in  any  criminal  proceeding  ren- 
der any  husband  competent  or  com- 
pellable to  give  evidence  for  or  against 
his  wife,  or  any  wife  competent  or 
compellable  to  give  evidence  for  or 
against  her  husband.'  The  first  ques- 
tion which  arose  on  the  construction 
of  this  clause  was  as  to  the  compe- 
tency and  compellability  of  liusbands 
and  Avives  to  give  evidence  for  or 
against  each  other  in  civil  proceed- 
ings. It  was  held  in  two  cases  that 
they  were  severally  incompetent;  Bar- 
bat  0.  Allen,  7  Ex.  G09;  Stapleton  v. 
Crofts,  18  Q.  B.  3G7;  but  it  appeared 
that  it  was  the  intention  of  the  legis- 
lature to  make  them  competent.  And 
now,  by  the  16  &  17  Vict.  c.  83,  hus- 


bands and  wives  are  rendered  compe- 
tent and  compellable,  in  all  cicil  cases, 
to  give  evidence  '  on  behalf  of  anv  or 
either  of  the  parties  to  the  said  suit, 
action,  or  proceeding.'  But  neither 
husband  nor  wife  is  compellable  to  dis- 
close any  communication  whatsoever 
made  to  him  or  her  by  the  other  dur- 
ing marriage.  After  the  death  of 
either  husband  or  wife,  the  privilege 
enures  for  the  benefit  of  the  survivor. 
See  O'Connor  v.  Marjoribanks,  4  M. 
&  G.  435.  These  provisions  were,  by 
the  act,  not  to  apply  in  criminal  cases, 
or  in  proceedings  instituted  in  conse- 
quence of  adultery;  but  now,  as  stated 
above,  the  Evidence  Further  Amend- 
ment Act,  1869,  has  made  the  hus- 
bands and  wives  of  parties  to  pro- 
ceedings instituted  in  consequence  of 
adukery  competent  witnesses."  Vide 
supra,  p.  38.  Powell's  Evidence,  4th 
cd.  46. 

In  Pennsylvania  we  have  the  fol- 
lowing :  "Since  the  Act  of  1869, 
enacting  that  neither  interest  nor  pol- 
icy of  law  shall  exclude  a  witness,  the 
ground  of  Post  v.  Avery  is  removed 
by  legislation.  Now  the  policy  at  the 
bottom  of  that  case,  and  its  secjnents, 
is  reversed,  and  prima  facie  all  wit- 
nesses are  competent  so  far  as  inter- 
est and  policy  are  in  the  question.  It 
therefore  lay  upon  the  defendant  to 
show  a  ground  of  incompetency  still 
remaining  to  exclude  the  witness.  As 
the  record  stood  then  without  objec- 
tion, there  was  nothing  to  show  that 
the  estate  of  Jonathan  II.  West,  or 
that  Enoch  West  had  any  interest  in 
the  controversy  before  the  court.  Since 
the  Act  of  1869,  the  court,  in  order  to 

431 


§  466.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


party  is  not  competent  as  a  witness.     The  reason  of   this  ex- 
ception is,  that  when   there  is  no    mutuality  there    should  not 


act  in  good  faith  towards  tlie  legisla- 
tive branch  of  the  government,  must 
discountenance  all  objections  on  the 
score  of  interest  and  policy  unless  they 
be  made  clearly  to  appear."  Agnew, 
J.,  McClelland's  Executor  v.  West's 
Administrator,  70  Penn.  St.  187. 

How  remedial  and  salutary  are  the 
statutes  in  the  view  of  American 
judges  is  illustrated  by  Judge  Swayne, 
in  the  following  opinion  in  Texas  v. 
Chiles,  21  Wall.  489:  — 

"  This  is  an  application  for  an  order 
that  a  subpoena  issue  for  John  Chiles, 
the  defendant,  in  order  that  his  depo- 
sition may  be  taken  on  behalf  of  the 
complainant.  The  proper  disposition 
of  the  motion  depends  upon  the  solu- 
tion of  the  question  whether  he  can 
be  required  to  testify  by  the  other 
party.  The  provision  of  the  act  of 
Congress  upon  the  subject  is  as  fol- 
lows: 

"  Section  858.  In  the  courts  of  the 
United  States  no  witness  shall  be  ex- 
cluded in  any  action  on  account  of 
color,  or  in  any  civil  action  because  he 
is  a  party  to,  or  interested  in  the  issue 
tried.  Provided,  that  in  actions  by 
or  against  executors,  administrators, 
or  guardians,  in  which  judgments  may 
be  i-endered  for  or  against  them,  nei- 
ther party  shall  be  allowed  to  testify 
against  the  other  as  to  any  transaction 
with,  or  statement  by,  the  testator, 
intestate,  or  ward,  unless  called  to  tes- 
tify thereto  by  the  opposite  party,  or 
required  to  testify  thereto  by  the 
court.  In  all  other  respects  the  laws 
of  the  state  in  which  the  court  is  held 
shall  be  the  rules  of  decision  as  to  the 
competency  of  witnesses  in  the  courts 
of  the  United  States  in  trials  at  com- 
mon law,  and  in  equity  and  admiral- 
ty."    Rev.  Stat.  U.  S.  162. 

"  It  was  a  rule  in  equity  of  long 
432 


standing  that  the  complainant  could 
examine  the  defendant  as  a  witness, 
upon  interrogatories,  and  that  one  de- 
fendant might  examine  another,  but 
they  could  not  examine  the  complain- 
ant without  his  consent,  and  the  right 
to  examine  a  defendant  was  attended 
with  serious  restrictions  and  embar- 
rassment. 1  Smith's  Ch.  Pr.  343 ;  1 
Greenl.  Ev.  §  361  ;  Eckford  v.  DeKay, 
6  Paige,  565;  Ashton  v.  Parker,  14 
Sim.  632;  2  Daniel's  Ch.  Pr.  Perkins's 
ed.  1865,  p.  885,  note.  A  bill  of  dis- 
covery was  a  dilatory  and  expensive 
measure.  2  Story's  Eq.  §§  1483,  1489. 
It  was  also  less  effectual  than  the  ex- 
amination of  the  defendant  as  a  wit- 
ness. In  trials  at  law  the  system  of 
exclusion  was  more  rigid.  The  gen- 
eral rule  of  the  common  law  was  that 
no  party  to  the  i-ecord  could  be  a  wit- 
ness for  or  against  himself,  or  for  or 
against  any  other  party  to  the  suit. 
1  Greenl.  Ev.  §§  329,  330.  This  doc- 
trine was  attacked  by  Bentham  in 
his  work  on  Evidence,  published  in 
1828,  with  great  force  of  reasoning. 
He  maintained  that  "  in  the  character 
of  competency  no  objections  ought  to 
be  allowed."     Vol.  i.  jj.  3. 

"  His  views  produced  a  deep  im- 
pression in  England,  and  became  the 
subject  of  earnest  discussion  there. 
Subsequently  they  bore  fruit.  In  '  the 
County  Courts  Act,'  passed  by  par- 
liament in  1846,  it  was  declared  that 
'  on  the  hearing  or  trial  of  any  ac- 
tion, or  on  any  other  proceeding  under 
this  act,  the  parties  thereto,  their 
wives,  and  all  other  persons  may  be 
examined  either  on  behalf  of  the 
plaintiff  or  defendant,  upon  oath  or 
solemn  affirnuition.'  This  was  a  great 
alteration  in  the  law  from  what  it  was 
before.  After  it  had  been  tested  for 
six  years  in  the  county  courts  and  its 


CHAP.  VIII.] 


WITNESSES:   PARTIES. 


[§  466. 


be  admissibility,  —  i.  e.  when  the  Hps  of  one   party  to  a  con- 
tract are  closed  by  death,  then  the  other  partj^  should  not  be 


wisdom  approved,  the  rule  was,  in 
1851,  by  a  measure  known  as  '  Lord 
Brougham's  Act,'  with  a  few  excep- 
tions not  necessary  to  be  stated,  made 
applicable  in  all  legal  proceedings 
elsewhere. 

"  An  able  writer  says:  'Every  emi- 
nent lawyer  in  Westminster  Hall  will 
readily  admit  that  it  has  been  pro- 
ductive of  highly  beneficial  results.' 
He  adds:  '  In  courts  of  law  it  has  not 
only  enabled  very  many  honest  per- 
sons to  establish  just  claims  which, 
under  the  old  system  of  exclusion, 
could  never  have  been  brought  to  trial 
with  any  hope  of  success,  but  it  has 
deterred  at  least  an  equal  number  of 
dishonest  men  from  attempting  on  the 
one  hand  to  enforce  a  dishonest  de- 
mand, and  on  the  other  to  set  up  a 
fictitious  defence.' 

"The  common  law  commissioners, 
in  their  report  upon  the  subject,  said  : 
'  According  to  the  concurrent  testi- 
mony of  the  bench,  the  profession  and 
the  public,  the  new  law  is  found  to 
work  admirably  and  to  contribute  in 
an  eminent  degree  to  the  administra- 
tion of  justice.'     2  Taylor's  Ev.  1088. 

"  The  innovation,  it  is  believed, 
has  been  adopted  in  some  form  in 
most,  if  not  in  all,  the  states  and  ter- 
ritories of  our  Union.  1  Greenl.  Ev. 
§  32'J.  It  is  eminently  remedial,  and 
the  language  in  which  it  is  coucheil 
should  be  construed  accordingly.  A 
doubt  has  been  suggested  whether  the 
enactment  before  us  does  not  give 
merely  a  privilege  to  each  party  which 
may  be  availed  of  or  not  as  a  matter 
of  choice,  without  conferring  the  right 
upon  either  to  compel  the  other  to 
testify.  This  view  is  too  narrow  and 
cannot  l)e  maintained.  The  first  sen- 
tence forbids,  in  the  courts  of  the 
United  States,  exclusion  in  any  case 
VOL.  I.  28 


on  account  of  color,  and  in  civil  ac- 
tions on  account  of  interest  or  being 
a  party.  If  either  party  offers  to  tes- 
tify and  is  excluded  by  reason  of  being 
a  party,  thei'e  is  certainly  a  clear  in- 
fraction of  the  statute,  both  as  to  its 
language  and  meaning.  If  either 
party  calls  the  other,  and  the  party 
called  is  excluded  upon  this  ground,  is 
not  the  infraction  equally  clear  ?  The 
language  applies  as  well  to  one  case 
as  to  the  other.  Both  are  alike  within 
its  terms  and  meaning.  We  see  no 
ground  for  a  distinction.  A  doubt, 
the  converse  of  the  one  suggested, 
might  with  equal  propriety  be  insisted 
upon.  Such  a  proposition  would  have 
the  same  foundation,  and  might  be 
sustained  by  an  argument,  mutatis  mu- 
tandis, in  the  same  terms.  The  same 
doubt  and  the  same  reasoning  would 
apply  as  to  colored  witnesses.  All 
such  doubts  rest  upon  an  assumption 
unwarranted  by  anything  in  the  stat- 
ute. The  case  is  one  where  the  lan- 
guage is  so  clear  and  comprehensive 
that  there  i^  no  room  for  construc- 
tion, and  the  duty  of  the  court  is  sim- 
ply to  give  it  effect  according  to  the 
plain  import  of  the  words.  There 
should  be  no  construction  where  there 
is  nothing  to  construe.  United  States 
V.  Wiltberger,  5  Wheat.  7G.  But  if 
there  were  doubt  upon  the  subject, 
the  statute  being  remedial  in  its  char- 
acter, the  doubt  should  be  resolved  in 
a  liberal  si)irit,  in  order  to  obviate  as 
far  as  possible  the  existing  evils.  To 
permit  parties  to  testify,  and  to  limit 
the  statute  to  this,  would  deprive  it 
of  half  its  efficacy,  and  that  much  the 
most  beneficial  i)art.  Where  the  tes- 
timony of  one  party  is  important  to 
the  other,  there  is,  of  course,  uuwill- 
in<'ness  to  give  it.  The  narrow  con- 
;ed  w( 

433 


§  466.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


heard  as  a  witness.  It  has  been  argued  that  if  this  reason  be 
sufficient,  it  would  prevent  all  suits  against  executors  and  ad- 
ministrators, because  if  the  inability  to  explain  be  a  ground  for 
the  exclusion  of  adverse  testimony  in  one  case,  it  is  a  ground  for 
the  exclusion  of  such  testimony  in  all.  But  whatever  is  the  force 
of  this  criticism,  the  exception  exists,  and  the  courts  have  united 
in  effectuating  it  so  far  as  to  silence  one  party  as  a  witness  as  to 
mutual  dealings  concerning  which  the  other  party  is  unable  to 
speak.i  While  such,  however,  is  the  policy  of  the  statutes,  there 
is  some  diversity  in  the  terms  in  which  this  policy  is  expressed. 
In  one  class  of  statutes,  of  which  that  of  New  York  may  be 
taken  as  the  representative,  the  object  of  the  suits  is  used  to 
define  the  exclusion,  and  it  is  provided  that  in  respect  to  con- 
tracts with  a  deceased  person  the  surviving  contractor  shall  not 
be  admissible.     In  others,  as  is  the  case  in  Massachusetts  and 

party  needing  the  evidence  in  such 
cases  no  choice  but  to  forego  it,  or 
fall  back  upon  a  bill  of  discovery.  It 
is  hardly  credible  that  Congress,  in 
departing  from  the  long  established 
restriction  as  to  parties  to  the  record, 
intended  to  stop  short  of  giving  the 
full  measure  of  relief.  We  can  see 
no  reason  for  such  a  limitation.  The 
purpose  of  the  act  in  making  the  par- 
ties competent  was,  except  as  to  those 
named  in  the  proviso,  to  put  them 
upon  a  footing  of  equality  with  other 
witnesses,  —  all  to  be  admissible  to 
testify  for  themselves  and  compellable 
to  testify  for  the  others." 

^  Eslava  v.  Mazange,  1  Woods,  623; 
Kelton  V.   Hill,  59  Me.  259;  Walker 
V.  Taj'lor,  43  Vt.  612;  Morse  v.  Low, 
44  Vt.  561  ;  Wood  v.  Shurtleff,  46  Vt. 
325 ;    Brooks   v.    Tarbell,    103   Mass. 
496;  Strong  v.  Dean,  55  Barb.  337; 
Resseguie  v.  Mason,  58  Barb.  99  ;  El- 
more V.  Jaques,  4   Thomp.  &  C.  679 
Walker  v.  Hill,   21   N.  J.  Eq.  191 
Karns  v.  Tanner,  66  Penn.   St.  297 
Craig  V.  Brendel,  69  Penn.  St.  153 
Hanna   v,    Wray,    77    Penn.    St.  29 
Downes  v.  R.  R.  37  Md.  100;  Field 
V.  Brown,  24  Grat.  74 ;  Reed  v.  Reed, 

434 


30  Ind.  313;  Bishop  v.  Welch,  35 
Ind.  521;  Noble  w.  Withers,  36  Ind. 
193  ;  Skillen  v.  Skillen,  41  Ind.  260 
Hoadley  v.  Hadley,  48  Ind.  452 
Goodwin  v.  Goodwin,  48  Ind.  452 
Hodgson  V.  Jeffries,  52  Ind.  234 
Donlevy  v.  Montgomery,  66  III.  227 
Keech  v.  Cowles,  34  Iowa,  259 ;  Koe- 
nig  V.  Katz,  37  Wise.  153;  White- 
sides  V.  Green,  64  N.  C.  307;  Isler  v. 
Dewey,  67  N.  C.  93;  Howerton  v. 
Lattimer,  68  N.  C.  370  ;  Guery  v. 
Kinsler,  3  S.  C.  423  ;  Latimer  v. 
Sayre,  45  Ga.  468  ;  Veal  v.  Veal,  45 
Ga.  511  ;  Graham  v.  Howell,  50  Ga. 
203 ;  Dixon  v.  Edwards,  48  Ga.  142  ; 
Waldman  v.  Crommelin,  46  Ala.  580 ; 
Stallings  v.  Hinson,  49  Ala.  92;  Key 
V.  Jones,  52  Ala.  238;  Witherspoon 
V.  Blewett,  47  Miss.  570;  Reinhardt 
V.  Evans,  48  Miss.  230  ;  Kellogg  v. 
Malin,  62  Mo.  429  ;  Lawhorn  v.  Car- 
ter, 11  Bush,  7;  Hook  v.  Bixby,  13 
Kans.  164.  See  Davis  v.  Plymouth, 
45  Vt.  492,  where  it  was  held  that,  on 
a  petition  by  a  woman's  guardian  to 
annul  her  marriage  to  a  deceased  man, 
on  the  ground  that  her  consent  was 
obtained  by  fraud,  she  is  not  a  com- 
petent witness. 


CHAP.  VIII.] 


WITNESSES  :    PARTIES. 


[§  466. 


Pennsylvania,  and  other  states,  the  parties  are  described,  it  being 
enacted  that  in  suits  by  or  against  executors,  the  opposing  party 
shall  not  be  received.  Yet  even  in  Pennsylvania  we  do  not  find 
this  line  exclusively  pursued,  for,  after  excluding  parties  in  suits 
against  executors,  the  statute  goes  to  exclude  them  in  cases 
"  where  the  assignor  of  the  thing  or  contract  in  action  may  be 
dead.^     Much,  however,  as  the  statutes  may  differ  in  words,  they 


I  In  Pennsylvania  this  peculiar- 
ity in  the  statute  is  thus  exhibited  and 
explained  :  — 

"  On  the  part  of  the  defence  Ful- 
lei'ton  Parker  was  called  as  a  witness 
to  rebut  the  plaintiffs  case,  and  was 
objected  to,  and  was  rejected  by  the 
court  as  incompetent.  This  is  the 
chief  question  in  the  cause,  and  in- 
volves the  question  of  the  true  mean- 
ing of  the  1st  section  of  the  Act  of 
15th  April,  1869,  allowing  parties  in- 
terested to  be  witnesses.  The  act 
reads  thus  :  '  No  interest  or  policy  of 
law  shall  exclude  a  party  or  person 
from  being  a  witness  in  any  civil  pro- 
ceeding: Provided,  This  act  shall  not 
alter  the  law  as  now  declared  and 
practised  in  the  courts  of  this  com- 
monwealth, so  as  to  allow  husband 
and  wife  to  testify  against  each  other, 
nor  counsel  to  testify  to  the  confiden- 
tial communication  of  his  client;  and 
this  act  shall  not  apply  to  actions  by 
or  against  executors,  administrators, 
or  guardians,  nor  where  the  assignor 
of  the  thing  or  contract  in  action  may 
be  dead,  excepting  in  issues  and  in- 
quiries devisavit  vel  non,  and  others 
respecting  the  right  of  such  deceased 
owner  between  parties  claiming  such 
right  by  devolution  on  the  death  of 
such  owner.'  The  judge  below  held 
that  Fullerton  Parker  was  incompe- 
tent to  testify  under  that  clause  of 
the  proviso  which  declared  that  the 
act  shall  not  apply  '  where  the  as- 
signor of  the  thing  or  contract  in  ac- 
tion may  be  dead.'     This  clause  con- 


templates two  things :  the  first,  that 
the  deceased  party  shall  be  the  as- 
signor of  a  thing  or  contract;  the  sec- 
ond, that  this  thing  or  contract  shall 
be  the  subject  of  the  action.  In  a  pre- 
cise sense,  then,  James  P.  Tanner, 
the  deceased  lessee  of  the  premises, 
is  not  the  assignor  of  Frances  E.  Tan- 
ner, for  he  was  dead  before  his  title 
passed;  and  it  was  passed  by  a  sher- 
iffs sale  by  act  of  the  law.  He,  there- 
fore, did  not  assign.  Again,  the  thing 
in  action  is  the  right  to  the  posses- 
sion of  the  premises  leased,  this  being 
an  action  of  ejectment,  and  the  con- 
tract under  which  this  right  arises  is 
the  lease  from  Parker  to  Tanner.  In 
that  lease  Parker  is  the  lessor,  and 
maybe  said  to  be  the  assignor  to  Tan- 
ner, of  the  thing  in  action,  and  Par- 
ker is  alive.  As  assignor  to  Tanner, 
he  seems  literally  not  to  be  within  the 
prohibition  of  the  proviso.  But  is 
this  the  true  meaning  of  the  proviso  ? 
We  think  not.  In  giving  to  this  law 
a  proper  interpretation  we  must  recur 
to  the  evil  intended  to  be  romedied. 
Post  V.  Avery,  5  W.  &  S.  509,  over- 
turning Steele  v.  Phoenix  Ins.  Co.  3 
Binn.  306,  established  the  rule  that  a 
party  making  an  assignment  of  his  in- 
terest in  the  subject  of  the  suit,  to  en- 
able himself  to  testify  for  his  assignee, 
is  incompetent  i\s  a  witness.  This 
was  confined  to  assignments  termed 
merely  colorable;  but  it  led  the  w.iy 
to  a  vast  train  of  decisions,  some  of 
which  went  beyond  the  origin.il  case. 
"  Thus  in  Graves  v.  Griliin,  7  liar- 

435 


§  ^^^-^ 


THE   LAW   OF   EVIDENCE. 


[book  II. 


are  the  same  in  purpose.  That  purpose  is  to  provide  that  when 
one  of  the  parties  to  a  litigated  obligation  is  silenced  by  death, 
the  others  shall  be  silenced  by  law. 


ris,  176,  a  party  to  a  contract,  not  the 
note  in  suit,  and  he  not  a  party  to  the 
action,  assigned  his  interest  in  the 
contract,  and  was  then  offered  by  the 
defendants  to  prove  that  the  plaintiffs 
had  agreed  that  the  note  in  suit  should 
be  applied  in  payment  of  his  contract. 
It  was  held  that,  by  the  doctrine  of 
Post  V.  Avery,  and  its  successors,  he 
was  incompetent;  Woodward,  J.,  say- 
ing, '  Though  not  a  party  to  the  rec- 
ord, he  should  have  been  excluded, 
whether  his  assignment  was  real  or 
fictitious.' 

"  So  it  was  held  in  Irwin  v.  Shu- 
maker,  4  Barr,  199,  that  a  co-defend- 
ant, Avho  was  a  certified  bankrupt,  as 
to  whom  a  nolle  prosequi  was  entered, 
and  who  executed  a  release  of  any 
surplus  to  his  assignee  in  bankruptcy, 
was  incompetent  on  the  score  of  pol- 
icy. Other  cases  lie  in  these  lines  of 
decision,  and  hence  it  was  said  in 
Cambria  Iron  Co.  v.  Tomb,  12  Wright, 
394,  that  a  party  to  the  record  is  in- 
competent as  a  witness  on  the  ground 
of  policy  has  become  too  firmly  fixed 
to  be  changed  as  a  rule  of  practice, 
except  by  legislation.  Many  attempts 
were  made  to  apply  this  remedy,  but 
all  failed,  until  the  Act  of  1869  was 
passed.  That  act  laid  the  axe  to  the 
root  of  the  evil,  by  declaring  that  no 
interest  or  policy  of  law  shall  exclude 
a  party  or  person  from  being  a  witness 
in  any  civil  proceeding.  This  was 
sweeping  language,  and  was  intended 
to  reach  every  imaginable  case.  But 
the  legislature  knew  that  there  were 
some  exceptions  that  must  be  allowed, 
otherwise  the  law  could  not  stand,  for 
it  would  run  counter  to  interests  so 
sacred,  and  policy  so  clear,  that  pub- 
lic sentiment  would  not  tolerate  their 

436 


sacrifice.  The  proviso,  therefore,  fol- 
lowed, which  was  evidently  the  prod- 
uct of  two  thoughts:  one  that  there 
were  certain  confidential  relations  to 
be  protected  against  compulsory  dis- 
closure; the  other  that  there  were  cer- 
tain cases  of  inequality,  where  it 
would  be  unjust  to  open  a  door  to  one 
party  that  was  closed  by  necessity 
against  the  other.  Hence  the  proviso 
declared  that  husband  and  wife  should 
not  be  permitted  to  testify  against 
each  other;  nor  counsel  to  testify  to 
the  confidential  communications  of 
his  client.  This  belongs  to  the  first 
thought,  the  confidential  relation.  It 
then  declared  that  the  act  should  not 
apply  to  actions  by  or  against  execu- 
tors, administrators,  or  guardians,  nor 
where  the  assignor  of  the  thing  or 
contract  in  action  may  be  dead. 
This,  evidently,  came  from  the  second 
thought,  as  to  the  inequality  of  the 
parties.  Where  one  of  two  parties  to 
a  transaction  is  dead,  the  survivor  and 
the  party  representing  the  deceased 
party  stand  on  an  unequal  footing  as 
to  a  knowledge  of  the  transaction  oc- 
curring in  the  lifetime  of  the  deceased. 
The  enacting  clause  had  opened  the 
lips  of  all  parties;  but  when  death 
came  it  closed  the  lips  of  one,  and 
even-handed  justice  required  the 
mouths  of  both  to  be  sealed.  In  re- 
gard to  one  class  we  easily  compre- 
hend that  a  survivor  ought  not  to  be 
permitted  to  testify  against  the  exec- 
utor or  administrator  of  his  adversary ;, 
but  as  to  the  other  class  in  the  same 
clause,  we  do  not  so  readily  perceive 
what  assignor  it  is,  who,  being  dead, 
the  proviso  closes  the  mouth  of  the 
survivor.  Evidently  it  is  the  true  pur- 
pose of  the  proviso  to  close  the  mouth  of 


CHAP. 


VIII.] 


WITNESSES:   PARTIES. 


[§  467. 


§  467.  The  exception  has  been  the  more  cordially  recognized 
from  the  fact  that  it  rests  on  a  principle  which  courts    „ 

'  '  _  hxception 

of  equity  concur  in  accepting.^      Thus,  a  pecuniary  de-   based  on 
mand  against  the  estate  of  a  deceased  person  will  not   equity 
be  considered  as  established  by  the  oath  of  the  person   P'"''^^'*^®- 


him  wlio  is  adversary  to  the  deceased 
assignor.  Here  the  current  of  former 
decisions  tends  to  elucidate  the  mean- 
ing of  the  legislature.  If,  therefore, 
the  holder  of  a  note,  bond,  or  other 
contract  should  assign  his  interest  to 
another,  he  was  held  to  be  incompe- 
tent to  support  the  claim  by  his  testi- 
mony against  the  opposite  party  in 
the  instrument  or  contract.  Hence, 
although  he  had  been  stripped  of  all 
apparent  interest  by  his  assignment, 
or  by  the  operation  of  the  bankrupt 
law,  yet  he  could  not  testify  against 
the  adverse  party.  One  of  the  rea- 
sons given  by  Woodward,  J.,  in  Graves 
V.  Griffin,  supra,  is,  that  whilst  one 
of  the  parties  to  a  contract  in  litiga- 
tion is  denied  the  privilege  of  testify- 
ing, the  policy  of  the  law  is  to  close 
the  mouth  of  the  other,  and  this, 
whether  it  relates  to  a  claim  of  a 
plaintiff,  or  a  set-off  of  a  defendant. 
The  true  spirit  of  the  proviso,  then, 
seems  to  be,  that  when  a  party  to  a 
thing  or  contract  in  action  is  dead, 
and  his  riglits  have  passed,  either  by 
his  own  act  or  by  that  of  the  law,  to 
another  who  represents  his  interests 
in  the  subject  of  controversy,  the  sur- 
viving party  to  that  subject  shall  not 
testify  to  matters  occurring  in  the  life- 
time of  the  adverse  party,  whose  lips 
are  now  closed. 

"  This  intent  is  gathered  also  from 
the  coupling  of  the  provision  for  the 
assignor  who  is  dead,  with  the  pro- 
vision for  the  case  of  an  executor  or 


administrator,  evidencing  that  the  leg- 
islature looked  upon  both  cases  as 
precisely  alike.  Another  clue  to  the 
meaning  is  found  in  the  exception  to 
the  proviso  found  in  the  last  clause  ; 
excepting  all  '  issues  and  inquiries  of 
devisavit  vel  nan  and  others  respecting 
the  right  of  such  deceased  owner  be- 
tween parties  claiming  such  right  by 
devolution  on  the  death  of  such  owner.' 
Thus,  parties  claiming  under  the  same 
decedent,  by  the  mere  operation  of  the 
law  devolving  the  estate  upon  them, 
as  by  descent  or  succession,  are  ex- 
empted from  the  prohibitipn  of  the 
proviso,  in  contrast  to  those  who 
stand  in  adversary  relation  by  rea- 
son of  a  subject  of  contract,  one  side 
of  which  has  come  from  one  of  the  orig- 
inal parties  to  the  disputed  subject. 

"  The  true  intent  of  the  legislature 
is  further  developed  by  the  Act  of  9th 
April,  1870,  declaring  that  '  in  all  ac- 
tions or  civil  proceedings  in  any  of  the 
courts  of  this  commonwealth,  brought 
by  or  against  executors,  administra- 
tors, or  guardians,  or  in  actions  where 
the  assignor  of  the  thing  or  contract 
in  action  may  be  dead,  no  interest  or 
policy  of  law  shall  exclude  any  party 
to  the  record  from  te^tifying  to  mat- 
ters occurring  since  the  death  of  the 
person  whose  estate,  through  a  legal 
rejiresentative,  is  a  party  to  the  rec- 
ord.' Here  the  terms, '  since  the  death 
of  the  person  whose  estate,  through  a 
legal  representative,  is  a  party  to  the 
record,*  are  striking,  for  both  classes 


1  Down  V.  Ellis,  35  Beav.  578  ;  v.  Power,  I.  R.  3  Ch.  602.  See,  how- 
Grant  V.  Grant,  34  Beav.  G23;  Nunn  ever,  as  qualifying  this,  U.,  falsely 
V.  Fabian,  35  L.J.  Ch.  140;  Hartford     called  J.,  i;.  J.,  L.  11.  1  P.  &  D.  4G1. 

437 


§  467.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


making  such  claim,  unsupported  by  any  other  evidence.^   Of  evi- 


are  linked  together  in  the  same  clause, 
and  the  terms,  through  a  legal  repre- 
sentative, applied  to  the  case  of  a  de- 
ceased assignor,  as  well  as  to  the  case 
of  an  executor  or  administrator,  evinc- 
ing the  intention  of  the  legislature  not 
to  confine  the  term  assignor  to  one 
who  has  by  his  own  act  merely  trans- 
ferred his  title,  but  rather  to  treat  the 
correlative  term  assignee  just  as  the 
term  assignees  is  oftentimes  used,  in  a 
broad  sense,  including  any  one  taking 
title  by  a  sheriff's  sale,  an  orphans' 
court  sale,  or  even  a  devise  under  a 
will.  Thus  in  the  present  case,  though 
Tanner  died  without  making  an  assign- 
ment himself,  yet  he  and  Parker  were 
the  parties  to  the  contest  arising  upon 
the  lease,  —  a  contest  now  between 
Mrs.  Tanner  and  Karns  &  Co.  Mrs. 
Tanner  now  represents  that  side  of 
the  controversy  which  her  deceased 
husband,  and  predecessor  in  the  title, 
once  represented.  Parker  is  the  sur- 
vivor of  the  parties  to  that  controversy, 
and  liable  to  his  second  lessees  on  his 
covenants  in  his  lease,  as  well  as  en- 
titled to  one  eighth  of  the  oil  to  be 
derived  from  it.  If  he  be  admitted  to 
testify  to  matters  occurring  in  the  life- 
time of  Tanner,  between  him  and 
Tanner,  it  is  obvious  the  very  case 
in  the  view  of  the  legislature  would 
arise,  and  he  would  hold  a  position  of 
advantage  which  would  be  unfair  to 
Mrs.  Tanner,  who  knows  nothing  of 
the  transaction  between  them,  and 
must  therefore  suffer  from  any  one- 
sided narration  he  might  give.  We 
think  the  court  committed  no  error  in 
excludins;  Parker  as  a  witness."  As- 
new,  J.,  Karns  v.  Tanner,  66  Penn. 
St.  303. 
Hence,  under  the  Pennsylvania  stat- 


ute, it  is  held  that  where  by  the  death 
of  one  of  two  defendants  the  plain- 
tiff is  made  incompetent,  the  surviv- 
ing defendant  cannot  testify.  "  When 
one  of  the  parties  to  a  contract  in  liti- 
gation is  denied  the  privilege  of  tes- 
tifying, the  policy  of  the  law  is  to  close 
the  mouth  of  the  other.  Graves  v. 
GrifSn,  19  Penn.  St.  176.  This  doc- 
trine was  recognized  prior  to  1869, 
and  is  the  true  principle  to  apply  to 
the  construction  of  this  act."  Karns  v. 
Tanner,  66  Penn.  St.  297;  Pattisonv. 
Armstrong,  74  Penn.  St.  476;  Grouse 
V.  Stanley,  3  Weekly  Notes,  83. 

The  term  "  action,"  in  the  statute, 
is  to  be  extended  so  as  to  embrace  all 
phases  of  litigation.  "  It  is  clear,"  so 
it  is  said  by  Williams,  J.,  in  develop- 
ing this  view,  "  that  the  appellant  was 
not  admissible  as  a  witness  in  support 
of  his  own  claim  as  -a  creditor  of  the 
estate  of  his  deceased  wife,  unless  he 
was  rendered  competent  by  the  Act  of 
15th  April,  1869.  That  act  declares 
that  '  no  interest  nor  policy  of  law 
shall  exclude  a  party  or  person  from 
being  witness  in  any  civil  proceeding: 
Provided,  this  act  shall  not  alter  the 
law  as  now  declared  and  practised  in 
the  courts  of  this  commonwealth,  so  as 
to  allow  husband  and  wife  to  testify 
against  each  other,  nor  counsel  to  tes- 
tify to  the  confidential  communication 
of  his  client;  and  this  act  shall  not 
apply  to  actions  by  or  against  execu- 
tors, administrators,  or  guardians,  nor 
where  the  assignor  of  the  thing  or  con- 
tract in  action  may  be  dead,  excepting 
in  issues  and  inquiries  devisavit  vel  non 
and  others,  respecting  the  right  of 
such  deceased  owner,  between  parties 
claiming  such  right  by  devolution  on 
the  death  of  such  owner.'     If,  under 


1  Poole  V.  Foxwell,  13  W.  R.   199;  cf.  Morley  v.  Finney,  18  W.  R.  490; 
Browne  v.  Collins,  21  W.  R.  222. 
438 


CHAP,  vni.] 


WITNESSES:   PARTIES. 


[§  467. 


dence  of  this  class,  it  has  been  remarked  by  James,  L.  J.,^  "even 
if  legally  admissible  for  any  purpose,  the  interests  of  mankind  im- 


the  first  clause  of  the  proviso,  the  hus- 
band -would  not  be  a  competent  wit- 
ness in  support  of  his  claim  against 
the  wife,  if  she  were  living,  why  should 
he  be  a  competent  witness  in  support 
of  his  claim  against  her  estate,  now 
that  she  is  dead  ?  There  would  seem 
to  be  a  greater  reason  for  his  exclusion 
in  the  latter  than  in  the  former  case. 
As  the  law  was  '  declared  and  prac- 
tised in  the  courts  of  this  common- 
wealth '  at  the  date  of  the  passage  of 
•  the  act,  the  husband  could  not  have 
been  examined  as  a  witness  in  support 
of  his  claim  against  his  wife,  whether 
she  were  living  or  dead.     Manifestly 


April,  1870,  which  declares  that  'in 
all  actions  or  civil  proceedings  in  any 
of  the  courts  of  this  commonwealth, 
brought  by  or  against  executors,  ad- 
ministrators, or  guardians,  or  in  ac- 
tions where  the  assignor  of  the  thing 
or  contract  in  action  may  be  dead,  no 
interest  or  policy  of  law  shall  exclude 
any  party  to  the  record  from  testifying 
to  matters  occurring  since  the  death 
of  the  person,  whose  estate,  through 
a  legal  representative,  is  a  party  to 
the  record, 

"  The  purpose  of  the  supplement  i8 
obvious.  It  was  intended  to  permit  a 
party  who  would  otherwise  have  been 


it   was   not   the   purpose   of   the   act     excluded  by  the  proviso  in  the  origi- 


to  open  the  lips  of  one  party  while 
those  of  the  other  were  closed.  This 
is  abundantly  evident  from  the  pro- 
vision that  'this  act  shall  not  apply 
to  actions  by  or  against  executors,  ad- 
ministrators, or  guardians.'  But  it  is 
said  that  this  proceeding,  for  the  dis- 


nal  act,  to  testify  to  matters  occurring 
since  the  death  of  the  person  whose 
estate,  through  a  legal  representative, 
is  a  party  to  the  record.  And  it 
shows  that,  in  the  legislative  under- 
standing, the  word  '  actions,'  as  used 
in  the  proviso,  was  intended  to  em- 


tribution  of  the  deceased  wife's  estate,  brace  civil  proceedings,  whatever  their 

is  not  an  action,  and  is,  therefore,  ex-  form,  as  well  as  actions  technically  so 

eluded  from  the  operation  of  the  pro-  called.     If  this  was  not  the  intention 

viso,  and  embraced  within  the  enact-  and  understanding  of  the  law-making 

ing  provisions   of   the   statute,  which  power,  why  were  '  issues  and  inquiries 

declare  that  '  no  interest  nor  policy  of  devisavit.  vel  non,'  &c.,  excepted  from  the 

law  shall  exclude  a  party  or  person  '  actions  '   to   which   it  was   declared 


from  being  a  witness  in  any  civil  pro- 
ceeding.'  But  to  give  such  a  con- 
struction to  this  clause  of  the  proviso 
would  be  adhering  to  the  letter  and 
rejecting  the  spirit  and  reason  of  the 
provision,  Qui  haeret  in  litem  haeret 
in  corlice.  He  who  considers  merely 
the  letter  of  the  enactment  goes  but 
skin-deep  into  its  meaning.  That  the 
term  '  actions,'  as  used  in  the  proviso, 
was  intended  to  embrace  all  civil  pro- 
ceedings, of  whatever  kind,  is  evident 
from   the   supplement   of   the    9th   of 


that  the  act  should  not  apply  ?  Be- 
sides a  suit  or  action,  according  to  its 
legal  definition,  is  the  lawful  demand 
of  one's  right  in  a  court  of  justice: 
Jus  prosequendi  in  judicio  quod  alicui 
dehitur.  3  Black.  Com.  116.  This 
definition  is  broad  enough  to  include 
the  proceeding  in  this  case.  The 
orphans'  court  was,  therefore,  clearly 
right  in  dismissing  the  exception  to 
the  auditor's  report  because  of  his  re- 
fusal to  permit  the  appellant  to  testify 
in  support  of  his  own  claim."     Wil- 


1  Hill  V.  Wilson,  L.  R.  8  Ch.  900;  42  L.  J.  Ch.  817. 

439 


§  467.] 


THE   LAW   OF    EVIDENCE. 


[book  II. 


peratively  require  that  unless  corroborated  it  should  be  wholly 
disregarded.     Nobody  would  be  safe  in  respect  of  his  pecuniary 

Hams,  J.,  McBride's  Appeal,  72  Penn. 
St.  482. 

Under  the  Pennsylvania  statute  it  is 
also  ruled   that  in  an  issue,  devisavit 


vel  non,  the  executor,  who  is  also  a 
devisee,  is  a  competent  witness  in  sup- 
port of  the  will. 

"  The  first  error  assigned  is  as  to 
the  competency  of  the  party  to  tes- 
tify. He  was  both  a  devisee  and  the 
executor.  It  was  admitted  upon  the 
argument,  that  if  he  had  been  the  ex- 
ecutor only,  he  would  have  been  com- 
petent under  the  exception  to  the  pro- 
viso of  the  Act  of  loth  April,  18G9, 
Pamph.  L.  30;  but  inasmuch  as  he 
was  a  devisee  also,  it  was  argued  that 
he  was  incompetent.  We  are  not  able 
to  see  the  force  of  the  reasoning  nor  to 
adopt  the  conclusion.  The  language 
of  the  exception  to  the  act  is  to  make 
parties  competent  '  in  issues  and  in- 
quiries devisavit  vel  non  and  others, 
respecting  the  right  of  such  deceased 
owner,  between  parties  claiming  such 
right  by  devolution  on  the  death  of 
such  owner.' 

"  This  is  an  issue  devisavit  vel  non. 
It  is  between  parties  claiming  a  right 
by  devolution  on  the  death  of  the  for- 
mer o\vner.  The  subject  matter  is 
respecting  the  right  so  acquired.  Thus 
the  form  of  the  suit,  the  parties  thereto, 
and  the  subject  matter,  bring  it  with- 
in the  exception.  We  see  nothing  in 
it  to  exclude   a  party   who  is   either 


ner,  16  P.  F.  Smith,  297."  Mercur,  J., 
Bowen  v.  Goranflo,  73  Penn.  St.  357, 
358. 

On  the  other  hand,  under  the  same 
statute,  a  distributee  is  not  a  compe- 
tent witness  in  the  distribution  of  a 
decedent's  estate  as  to  transactions 
in  his  lifetime. 

"  The  first  assignment  is  the  refusal 
to  permit  the  appellant  to  testify  in 
his  own  behalf.  His  object  was  to 
relieve  himself  from  a  portion  of  the 
claim  of  the  estate  of  the  intestate 
against  him.  He  sought  to  testify  to 
transactions  which  occurred  during 
the  life  of  the  decedent.  That  mutu- 
ality or  equality  did  not  then  exist  be- 
tween the  parties,  which  is  necessary 
to  permit  a  party  to  testify  in  his  own 
behalf.  The  parties  are  not  within 
the  proviso  to  the  first  section  of  the 
Act  of  15th  April,  18G9.  The  appel- 
lant was,  therefore,  rightfully  ex- 
cluded. Karns  v.  Tanner,  16  P.  F. 
Smith,  297."  Mercur,  J.,  Eshleman's 
Appeal,  74  Penn.  St.  42,  48. 

It  has  been  further  held  in  the  same 
state,  that  where  one  partner  is  dead, 
in  a  suit  against  the  survivor  for  a 
claim  against  the  firm,  the  plaintiff  is 
not  a  competent  witness,  under  the 
Act  of  April  15,  1869.  Hanna  v. 
Wray,    77    Penn.    St.   27. 

"  There  is  but  one  question,"  said 
Agnew,  C.  J.,  "  which  we  need  con- 
sider, —  the    competency   of    Robert 


devisee  or  executor  only.     A  union  of    Wray  as  a  witness  in  his  own  behalf. 


two  conditions  of  competency,  each 
unquestioned  by  itself,  will  not  create 
incompetency  as  its  joint  product.  It 
follows  that  both  parties  claiming  an 
estate,  under  the  same  decedent,  which 
has  devolved  on  them  by  descent  or 
succession,  are  competent  witnesses  in 
the  trial  of  an  issue  to  settle  their  re- 
spective rights  thereto.    Karns  v.  Tan- 

440 


He  was  called  and  permitted  to  prove 
a  transaction,  and  the  conversations 
between  himself  and  Ira  B.  !McYay, 
the  deceased  partner  of  the  defendant. 
The  case  turned  upon  the  special  ar- 
rangement, relating  to  the  note  out 
of  which  the  controversy  arose,  made 
between  himself  and  McVay.  They 
were  the  acting  parties  in  the  trans- 


CHAP.  VIII.] 


witnessp:s  :  parties. 


[§  ^67. 


transactions  if  legal  documents  found  in  liis  possession  at  the  time 
of  his  death,  and  endeavored  to  bfe  enforced  by  his  executors,  could 

action,   and   when  McVay   died,  the  and  that  Mr.  Tanner  was  the  deceased 

truth,  so  far  as  it  could  be  heard  from  assignor  within  the  terms  of  the  law." 

his  lips,  died  with  him.    Wray,  there-  In  Rutherford's  E<tate,  2  Notes  of 

fore,    stood  upon  a   vantage   ground,  Cases,  443,  it  was  held  that  a  ward, 

which  he  had  gained  by  the  death  of  recently  arrived  at  age,  was,  under  the 

McVay.     This  brings  the  case  within  statute,  competent  to  impeach  the  tes- 

the  true  intent  and  spirit  of  the  ex-  timony  of  his  late  guardian, 

ception  contained  in  the  Act  of  15th  In  Am.  Life  Ins.  v.  Shultz,  2  Notes 

April,  1869,   and  directly  within  the  of    Cases,    665,   it  was    held  that    in 

decision  in  Karns  v.  Tanner,  16  P.  F.  a   suit  upon   a  contract  made  by  an 

Smith,   297.     In  that  case  the  Act  of  agent  on   behalf  of  his  principal,  the 

1869  was  fully  and  carefully  consid-  death  of  the  agent  does  not  render  the 

ered,  and  the  interpretation  then  given  other  party  to  the  contract  incompe- 

to  it  has  since  been  repeatedly  recog-  tent   as   a  witness   under  the  Act  of 

nized.     It  was  then  said  that  the  pro-  April  15,  1869. 

viso  was  the  product  of  two  thoughts :  In  Kindjle  v.  Carothers,  3  Notes  of 

one  that  there  were  certain  confiden-  Cases,  88,  it  was  ruled  that  in  an  ac- 

tial  relations  to  be  protected  against  tion  by  the  administrator  of  A.  against 

disclosure;  the  other,  that  there  were  the   administrator   of    B.,   to   recover 

cases   of    inequality    where   it   would  funds  alleged  to  belong  to  A.'s  estate, 

be  unjust  to  open  a  door  to  one  party  the  next  of  kin  of  A.  are  not  compe- 

that    was    closed    by    death    against  tent. 

the  other.      In  reference  to  the  sec-  "They"    (the   next   of  kin),  said 

ond    class,  it   was    said    it  was   evi-  Sharswood,  J. ,  "were  directly  inter- 

dently  the  true  purpose  of  the  pro-  ested,   therefore,    that    the    plaintiff 

viso  to  close  the  mouth  of  him  who  is  should  recover,  and  prior  to  the  Act 


the    adversary    of    the    deceased    as- 
signor. 

"  The  conclusion  reached  was  this, 
in  the  language  of  the  opinion  :  '  The 


of  April  15,  1869  (Pamph.  L.  30), 
'  An  act  allowing  parties  in  interest  to 
be  witnesses,'  were  undoubtedly  in- 
competent.    1   Greenleaf   on    Evid.  § 


true  spirit  of  the  proviso,  then,  seems  392,  and  cases  there  cited;  JNIishler  v. 
to  be,  that  when  a  party  to  a  thing  or  Merkle,  10  Barr,  509.  It  must  have 
contract  in  action  is  dead,  and  his  been  supposed  by  the  learned  court 
rights  have  passed,  either  by  his  own 
act  or  that  of  the  law,  to  another,  who 
represents  his  interest  in  the  subject 
of  controversy,  the  surviving  party  to 
that  subject  shall  not  testify  to  mat- 
ters occurring  in  the  lifetime  of  the 
adverse  party,  whose  lips  are  now 
closed.'    Hence,  it  was  held  there  that 


below  that  the  act  referred  to  ren- 
dered them  competent.  But  this  was 
an  error.  The  act  declares  expressly, 
that  it  '  shall  not  apply  to  actions  by 
or  against  executors,  administrators, 
or  guardians.'  Ft  can  make  no  dif- 
ference that  both  ])laintin' and  defend- 
ant are  administrators.     Even  looking 


Mrs.  Tanner,  who  became  the  owner  beyond  the  letter  to  the  spirit  of  the 

of  the   estate,  the  subject  of  contro-  act,  that  a  living   party  shall   not  be 

versy,   by    a    sheriff's   sale,  after   the  heard  to  prove  a  claim  against  the  es- 

death  of  Mr.  Tanner,  stood  in  the  re-  tate   of  a  decedent,   who  was    also  a 

lation  contemplated    by  the   proviso,  party  to  the  contract  or  transaction, 

441 


§  467.] 


THE   LAW   OF   EVIDENCK. 


[book  II. 


be  set  aside,  or  varied,  or  altered,  by  the  parol  evidence  of  the 
person  who  had  bound  himself."  ^     The   English    equity  rule, 

"  The  lanjjuaore  of  the  statute  re- 


whose  lips  are  now  sealed,  the  admis- 
sion of  these  witnesses  cannot  be  sus- 
tained." 

Under  the  peculiar  provisions  of  the 
same  statute  it  has  been  determined 
that  the  husband  or  wife  of  a  party 
to  a  suit  cannot  testify  against  an  ex- 
ecutor on  a  contract  alleged  to  have 
been  made  with  the  latter's  decedent. 
"  The  right  of  the  witnesses  to  testify 
is  rested  on  this  Act  of  18G9.  It  is 
urged,  inasmuch  as  it  declares  '  no  in- 
terest nor  policy  of  law  shall  exclude 
a  party  or  person  from  being  a  wit- 
ness,' and  the  witnesses  oflf'ered  not 
being  directly  interested  in  the  event 
of  the  suit,  they  cannot  be  excluded 
by  the  policy  of  the  law.  Prior  to  the 
enactment  of  this  statute,  both  inter- 
est and  policy  excluded  husband  and 
wife  from  testifying  for  and  against 
each  other. 

"  We  must  not  overlook  the  fact 
that  all  competency  imparted  to  any 
witness,  by  the  enacting  clause  of  the 
first  section,  is  entirely  taken  away  by 
the  proviso,  in  case  an  executor  is  a 
party  to  the  action.  It  would  be  no 
more  clearly  in  the  face  of  the  statute 
to  hold  that  husband  and  wife  may 
testify  against  each  other,  than  that 
they  may  testify  in  their  own  favor, 
when  an  executor  is  a  party  to  the 
action,  to  events  which  transpired 
during  the  life  of  the  testator.  Each 
is  prohibited  by  the  same  expressive 
language.  The  same  clause  in  the 
enactment  made  both  husband  and 
wife  equally  competent.  The  same 
prohibition  in  the  proviso  made  them 
both  incompetent  to  testify  in  behalf 
of  each  other,  when  an  executor  is  a 
party. 


quires  no  acuteness  to  interpret  it.  It 
utters  no  uncertain  sound.  Any  at- 
tempt to  define  its  meaning  cannot 
make  it  more  clear.  We  have  no  right 
to  assume  the  legislature  did  not  in- 
tend what  they  have  so  distinctly  and 
imperatively  declared.  We  must  not 
search  for  some  occult  meaning,  as  if 
the  language  was  obscure.  We  must 
yield  to  its  language,  so  clearly  ex- 
pressed, its  natural  force  and  effect. 

"  The  subject  matter  about  which 
the  witnesses  were  called  to  testify  is 
not  \vithin  the  exception  to  the  pro- 
viso. It  is  not  the  settlement  of  a 
claim  of  right  that  passed  by  devolu- 
tion of  the  estate.  The  incompetency 
of  the  witnesses  in  this  case  stands  as 
if  this  act  had  never  been  passed. 

"  When  the  legislature  sought  to 
qualify  this  statute,  as  they  did  by  the 
first  section  of  the  Act  of  9th  April, 
1870,  they  restricted  the  right  of  a 
party  to  testify,  to  matters  only  which 
occurred  after  the  death  of  the  per- 
son, whose  estate  was  represented  on 
the  trial. 

"  The  conclusion  to  which  we  have 
arrived  is  sustained  by  Diehl  r.  Emig, 
15  P.  F.  S.  320.  That  was  an  ac- 
tion by  a  daughter  against  the  ex- 
ecutor of  her  father's  will.  It  was 
held  her  husband  was  not  a  compe- 
tent witness  to  testify  to  matters  oc- 
curring in  her  father's  lifetime.  It  is 
also  in  accord  Avith  the  spirit  and  rea- 
soning of  Karns  v.  Tanner,  16  P.  F. 
Smith,  297,  and  of  Pattison  v.  Arm- 
strong et  al.  24  Ibid.  476.  It  is  true, 
the  conclusion  to  which  we  have  ar- 
rived is  in  conflict  with  Dellinger's 
Appeal,     21    Ibid.    425;    but  a  more 


1  Powell's  Evidence  (4th  ed.),  53.     See  Brown  v.   Brown,  48  N.  H.  91, 
quoted  supra. 

442 


CHAP.  VIII.] 


WITNESSES  :    PARTIES. 


[§  4G7. 


however,  receives  the  evidence  of  the  surviving  party  when  cor- 
roborated ;  our  statutes  exclude  his  testimony  in  toto  when  di- 
rected to  establish  or  explain  the  contract. 


careful  examination  of  the  act  con- 
vinces us  that  due  consideration  was 
not  then  given  to  its  provisos.  It  may 
be  said,  however,  that  Dellinger's 
Appeal  was  not  a  common  law  action 
by  or  against  an  executor  ;  but  the 
distribution  of  a  fund  in  the  orphans' 
court.  It  was,  however,  held  in  Mc- 
Bride's  Appeal,  22  Ibid.  480,  that  the 
word  '  actions,'  as  used  in  the  proviso, 
was  intended  to  embrace  civil  pro- 
ceedings, whatever  their  form,  as  well 
as  actions  technically  so  called.  An 
action  is  the  lawful  demand  of  one's 
right  in  a  court  of  justice.  So  in 
Gyger's  Appeal,  24  Ibid.  48,  it  was 
held  that  a  distributee  is  not  a  com- 
petent witness,  in  the  distribution  of  a 
decedent's  estate,  as  to  matters  occur- 
ring in  the  lifetime  of  the  decedent." 
Mercur,  J.,  Taylor  v.  Kelly,  Pittsburg 
L.  J.  Ap.  26,  1876;  S.  C.  3  Notes 
of  Cases,  206;  S.  P.  Stoll  v.  Weidman, 
3  Notes  of  Cases,  204. 

Where  A.  leased  to  B.  a  brewery 
and  fixtures,  stipulating  that  any  im- 
provements or  alterations  shoidd  be- 
long to  the  lessor  at  the  end  of  the 
term,  and  B.  erected  a  new  boiler  on 
the  property  and  assigned  the  lease  to 
C.  ;  in  an  action  by  A.'s  executors 
against  C.  for  the  rent,  C.  having  set 
off  the  value  of  the  boiler,  offered  B. 
to  prove  a  parol  variation  of  the  terms 
of  the  lease,  it  was  held  that  B.  was  a 
party  in  interest  within  the  meaning 
of  the  Act  of  15  April,  18G9,  and  his 
testimony  was  inadmissible.  Whitney 
V.  Shippen,  2  Notes  of  Cases,  470. 
"  Every  vendor  of  personal  prop- 
erty impliedly  warrants  the  title  to 
his  vendee.  There  can  be  no  doubt, 
therefore,  that  Thomas  J.  IMartin  was 
an  interested  witness,   and  incompe- 


tent, unless  he  was  made  competent 
by  the  Act  of  April  15,  1869  (Pamph. 
Laws,  30).  But  that  act  expressly 
declares  'that  it  shall  not  apply  to 
actions  by  or  against  executors.'  The 
witness  was  offered  to  prove  a  verbal 
contract  with  the  testator  in  his  life- 
time; and,  therefore,  it  cannot  be  pre- 
tended that  he  was  within  the  excep- 
tion of  the  Act  of  9th  April,  1870 
(Pamph.  Laws,  44),  though  the  act 
in  words  is  confined  to  the  case  of  a 
party  to  the  record,  which  the  witness 
in  this  case  was  not.  We  think, 
therefore,  that  he  was  properly  re- 
jected."    Williams,  J.,  Ibid. 

In  New  Hampshirk,  "by  the  law 
of  June,  1S65,  chapter  4074,  the 
court  may,  in  its  discretion,  permit 
the  parties  to  testify  in  such  case, 
only  where  it  is  clearly  made  to  ap- 
pear that  actual  injustice  or  fraud 
will  otherwise  be  done  ;  and  it  is  now 
well  settled  that  if  the  transaction 
about  which  the  testimony  of  the 
party  is  sought  was  directly  between 
the  deceased  and  the  living  party, 
and  to  which  the  deceased  might 
have  testified  if  living,  the  surviving 
party  will  not  ordinarily  be  allowed  to 
testify.  Moore  v.  Taylor,  44  N.  H. 
374  ;  Chandler  v.  Davis,  Strafford  Co, 
December,  1867  ;  Harvey  v.  Hilliard, 
Coos  Co.  January,  1858."  Brown  v. 
Brown,  48  N.  H.  91,  Bellows,  J. 
See  Fosgate  v.  Thompson,  54  N.  H. 
455.  The  exception  in  the  statute 
cannot  be  stretched  to  cases  where 
the  opposite  party  is  disabled  from 
testifying  by  insanity.  Crawford  v. 
Robie,  42  N.  H.  162. 

The  Illinois  statute,  which  pro- 
hibits a  party  from  testifying  when 
the  adverse  party  sues  or  defends  "  as 

443 


§  468.] 


THE   LAW   OF   EVIDENCE. 


[rook  II. 


§  468.  Yet  the  exception,  in  those  statutes  which  simply  ex- 
Incompe-  clude  proof  of  communications  with  deceased  persons, 
does  not  make  the  surviving  party  incompetent,  but 
only  precludes  him  from  testifying  to  communications 
with  the  deceased.  The  witness  is  competent  as  to 
other  matters.^     The  test  is  the  nature  of  the  commu- 


tency  re- 
stricted to 
communi- 
cations 
with  de- 
ceased. 


executor,  administrator,  heir,  legatee, 
or  devisee,  of  a  deceased  person,"  has 
been  held  to  apply  to  remote  as  well 
as  to  immediate  heirs.  Merrill  v. 
Atkin,  59  III.  19. 

The  Nebraska  statute  is  of  the 
same  purport.  Wamsley  V.  Crook,  3 
Neb.  344. 

In  Massachusetts,  the  statute 
provides  that  "  where  an  executor  or 
administrator  is  a  party  to  the  suit,  the 
other  party  shall  not  be  admitted  to 
testify  in  his  own  favor,  except  as  to 
such  acts  and  contracts  as  have  been 
done  or  made  since  the  probate  of  the 
will,  or  the  appointment  of  the  admin- 
istrator." This  has  been  held  not  to 
prevent  the  defendant,  in  an  action 
brought  by  an  administrator  de  bonis 
non,  from  testifying  to  occurrences  be- 
fore the  plaintiff's  appointment,  but 
after  the  appointment  of  the  original 
administrator.  Palmer  v.  Kellogg,  11 
Gray,  27.  See  Lincoln  v.  Lincoln,  12 
Gray,  45.  So,  also,  virtually,  in  Ver- 
mont. See  Hunter  r.  Kittredge,  41 
Vt.  359  ;  Dawson  v.  Wait,  41  Vt. 
626. 

On  the  construction  of  the  Massa- 
chusetts statute  we  have  the  following 
opinions :  — 

"  The  defendant  Marshall   having 


deceased,  his  administrator  was  sum- 
moned in  and  appeared.  The  defend- 
ants contended  that,  by  the  decease  of 
Marshall,  the  plaintiff  became  incom- 
petent to  testify,  and  that  the  master 
erred  in  admitting  him  as  a  witness. 
But  it  is  settled  that  a  plaintiff  is  a 
competent  witness  under  our  statute, 
notwithstanding  the  decease  of  one 
of  several  defendants.  Hay  ward  v. 
French,  12  Gray,  512;  Brady  i'.  Brady, 
8  Allen,  101."  Chapman,  J.,  Doody 
V.  Pierce,  9  Allen,  144. 

"  The  provision  in  Gen.  Sts.  c.  131, 
§  14,  that  parties  to  a  cause  may  be 
witnesses,  is  qualified  by  the  exception 
that  '  where  one  of  the  original  parties 
to  the  contract  or  cause  of  action  in 
issue  and  on  trial  is  dead,  or  is  shown 
to  the  court  to  be  insane,  the  other 
party  shall  not  be  admitted  to  testify 
in  his  own  favor;  and  where  an  exec- 
utor or  administrator  is  a  party,  the 
other  party  shall  not  be  admitted  to 
testify  in  his  own  favor,  unless  the 
contract  in  issue  was  originally  made 
with  a  person  who  is  living  and  com- 
petent to  testify,  except  as  to  such  acts 
and  contracts  as  have  been  done  or 
made  since  the  probate  of  the  will,  or 
the  appointment  of  the  administrator.' 

"  The   St.  of  1865,  c.  207,  §  7,  con- 


1  Kelton  V.  Hill,  59  Me.  259;  Smith 
V.  Sergent,  4  Thomp.  &  C.  684;  Mc- 
Ferren  i'.  Mont  Alto  Co.  76  Penn.  St 
180;  Stonecipher  n  Hall,  64  111.  121 
Donlevy  v.  Montgomery,  66  111.  227 
Campbell  v.  Mayes,  38  Iowa,  9 
Wheeler  v.  Arnold,  30  Mich.  304 
Twiss    V.     George,    33    Mich.    253 

444 


Gray  v.  Cooper,  65  N.  C.  183;  Red- 
man V.  Redman,  70  N.  C.  257;  Strick- 
land V.  Wynn,  51  Ga.  600;  O'Neal 
V.  Reynolds,  42  Ala.  19  7;  Martin  v. 
Jones,  59  Mo.  181 ;  Poe  v.  Domec,  54 
Mo.  119;  Giles  v.  Wright,  26  Ark. 
476  ;  McKean  v.  Massey,  9  Kans.  600. 
See  Willingham  v.  Smith,  48  Ga.  580. 


CHAP.  VIII.] 


WITNESSES:    PARTIES. 


[§  468. 


nications.  Where  a  surviving  parfey  undertakes  to  testify  to  per- 


tained the  further  provision,  that 
'  whenever  the  contract  or  cause  of 
action  in  issue  and  on  trial  was  made 
or  transacted  with  an  agent,  the  death 
or  insanity  of  the  principal  shall  not 
prevent  any  party  to  the  suit  or  pro- 
ceeding from  being  a  witness  in  the 
case :  provided  such  agent  shall  be 
living  and  competent  to  testify.' 

"The  object  and  purpose  of  these 
exceptions  obviously  are,  to  put  the 
two  parties  to  a  suit  upon  terms  of 
substantial  equality,  in  regard  tb  the 
opportunity  of  giving  testimony.  In 
general,  when  parties  have  contracted 
with  each  other,  each  may  be  supposed 
to  have  an  equal  knowledge  of  the 
transaction;  and  both,  if  living  and  of 
sound  mind,  are  allowed  to  testify. 
But  if  one  is  precluded  from  testify- 
ing from  death  or  insanity,  the  other 
is  not  entitled  to  the  undue  advantage 
of  being  a  witness  in  his  own  case  ; 
where,  however,  a  party  has  con- 
tracted through  an  agent,  if  the  agent 
is  living,  the  death  of  the  principal 
does  not  deprive  his  personal  repre- 
sentative of  the  testimony  of  the  one 
most  fully  acquainted  with  the  facts 
of  the  case  ;  and  the  other  party  may 
without  injustice  be  admitted  as  a 
witness.  Indeed,  if  he  were  not,  the 
injustice  might  be  the  other  way. 

"  The  St.  of  18G5  must,  therefore, 
be  construed  as  if,  instead  of  saying 
'  Shall  not  prevent  any  party  to  the 
suit  or  proceeding,'  it  had  said,  '  Shall 
not  prevent  any  party  to  the  suit  or 
proceeding  who  made  the  contract 
with  the  agent.'  It  could  not,  we  think, 
have  been  intended  to  have  any  appli- 
cation to  the  case  of  a  suit  by  an  agent 
against  the  representatives  of  his  prin- 
cipal. In  the  case  at  bar,  an  agent 
sues  the  administratrix  of  his  princii)al 
upon  the  implied  contract  of  indem- 
nity for  acts  done  in  the  principal's 


service.  One  party  to  the  contract  is 
dead,  and  the  other  cannot  be  a  wit- 
ness. The  exception  in  St.  1865  is 
not  applicable."  Hoar,  J.,  Brown  v. 
Brightman,  11  Allen,  227. 

"  Most  of  the  exceptions  relating  to 
the  admission  and  rejection  of  evi- 
dence become  immaterial  by  the  find- 
ing of  the  judge  in  the  plaiiitifTs  favor 
in  the  matter  of  the  fraud  in  the  orig- 
inal transaction;  and  of  the  remain- 
ing, only  two  were  relied  on  in  argu- 
ment. In  reference  to  the  refusal  to 
admit  the  plaintiffs  as  competent  wit- 
nesses under  the  Gen.  Sts.  c.  131 ,  §  14, 
it  is  to  be  noticed  that  no  decree  is 
sought  against  the  administratrix  of 
Brackett,  who  is  made  a  defendant ; 
that  the  only  real  parties  in  interest 
are  the  plaintiffs  and  Samuel  P.  Whit- 
man ;  that  the  defendants  are  not 
joint  parties;  and  that,  as  the  issue 
Avas  presented  and  tried,  it  was  an 
attempt  to  impeach  the  validity  of  a 
contract,  maile  wiih  a  person  since  de- 
ceased, in  the  form  of  a  note  j)ayable 
to  his  order,  secured  by  mortgage,  and 
indorsed  by  Samuel  P.  Wliitman.  It 
is  a  case,  therefore,  where  one  of  the 
parties  to  the  contract  is  dead,  and 
the  other  party,  who  is  also  a  party  to 
the  record,  by  the  provision  of  the 
statute  is  excluded.  Hubbard  v.  Cha- 
pin,  2  Allen,  328;  Smitli  v.  Sa»ith,  1 
Allen,  231  ;  Byrne  v.  McDonald,  Ibid. 
293."  Colt,  J.,  Richardson  v.  Brack- 
ett, 101  Mass.  500. 

"  But  tlie  demandant  was  not  a  com- 
petent witness  to  prove  performance 
of  the  condition  upon  which  the  deed 
was  given.  The  deed  was  the  con- 
tract in  issue  and  on  trial.  It  consti- 
tuted the  title  on  which  the  di-inaiulant 
rested  her  claim  to  the  premises.  The 
plea  puts  that  title  distinctly  in  issue. 
The  grantor,  '  one  of  the  original  par- 
ties to  the  contract,'  is  dead,  and  the 

445 


§  4G8.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


sonal  communications  with  a  deceased  party,  there  such  survivor 


demandant  is  *  the  other  party.'  The 
statute  excludes  her.  St.  18G5,  c.  207, 
§  2;  Straw  v.  Greene,  14  Allen,  206; 
Morony  v.  O'Laughlin,  102  Mass.  184. 
On  this  ground  a  new  trial  must  be 
granted."  Wells,  J.,  Trafton  v.  Hawes, 
102  Mass.  541. 

"  The  contract  in  issue  and  on  trial 
was  a  promissory  note  made  by  Wood 
to  Dresser,  and  by  him  indorsed  to  the 
plaintiff.  Dresser,  one  of , the  original 
parties  to  that  contract,  was  dead,  and 
Wood,  the  other  party,  was  therefore 
rightly  not  permitted  to  testify  in  his 
own  favor.  Gen.  Sts.  c.  131,  §  14; 
Byrne  v.  McDonald,  1  Allen,  293." 
Gray,  J.,  Withed  v.  Wood,  103  Mass. 
564. 

The  New  York  Code  of  Procedure, 
§  399,  provides  that  "  no  party  to  any 
action  proceeding,  nor  any  person  in- 
terested in  the  event  thereof,  nor  any 
person  from,  through,  or  under  whom 
any  such  party  or  interested  person 
derives  any  interest  or  title  by  assign- 
ment or  otherwise,  shall  be  examined 
as  a  witness  in  regard  to  any  personal 
transaction  or  communication  between 
such  witness  and  a  person,  at  the  time 
of  such  examination,  deceased,  insane, 
or  lunatic,  against  the  executor,  ad- 
ministrator, heir  at  law,  next  of  kin, 
assignee,  legatee,  devisee,  or  survivor 
of  such  deceased  person,  or  the  as- 
signee or  committee  of  such  insane 
person  or  lunatic.  But  this  prohibi- 
tion shall  not  extend  to  any  transac- 
tion or  communication  as  to  which  any 
such  executor,  administrator,  heir  at 
law,  next  of  kin,  assignee,  legatee, 
devisee,  survivor,  or  committee  shall 
be  examined  on  his  own  behalf,  or  as 
to  which  the  testimony  of  such  de- 
ceased person  or  lunatic  shall  be  given 
in  evidence." 

Under  this  section  it  has  been  held 
that  witnesses  as  to  communications 

446 


with  the  deceased,  to  be  excluded, 
must  be  either  parties,  or  must  be 
interested  in  the  result  of  the  suit. 
Other  heirs,  not  parties,  and  not  in- 
terested in  a  suit  brought  by  an  heir 
at  law  of  a  deceased  grantor  to  set 
aside  deeds  because  of  fraud,  may  tes- 
tify in  such  suit  as  to  personal  conver- 
sations with  the  deceased.  Hobart  v. 
Hobart,  62  N.  Y.  80. 

"  Assignee  "  of  deceased,  under  this 
statute,  includes  his  grantee.  Mat- 
toon  V.  Young,  45  N.  Y.  696.  But  the 
statute  does  not  apply  in  favor  of  an 
assignee  claiming  under  a  transfer 
made  by  the  deceased  prior  to  the 
litigated  transaction,  and  having  then, 
as  against  the  deceased,  a  perfect  title. 
Gary  v.  White,  59  N.  Y.  336. 

In  the  same  state  it  is  further  ruled 
that  bare  proof  of  the  fact  that  a  con- 
versation was  had  with  a  deceased 
person,  without  proof  of  the  conversa- 
tion itself,  is  not  obnoxious  to  the  ob- 
jection, that  it  is  proof  of  a  transac- 
tion or  communication  within  the 
meaning  of  section  399  of  the  Code, 
unless  it  may  be  in  a  case  where  the 
mere  fact  of  a  conversation  is  the  ma- 
terial thing  to  be  proved. 

"  Nor  was  there  any  error,"  said 
Church,  C.  J.,  "  committed  on  the 
trial.  The  question  to  one  of  the  de- 
fendants, whether  he  had  a  conver- 
sation with  the  deceased  partner, 
Schnauber,  in  relation  to  selling  Hoyt 
tobacco,  Avas  not  obnoxious  to  the  ob- 
jection that  it  called  '  for  a  transac- 
tion or  communication  between  de- 
fendant and  a  deceased  person.'  The 
fact  of  having  a  communication  was 
not  a  transaction  within  the  meaning 
of  the  Code,  nor  was  it  a  communi- 
cation. The  referee  sustained  the 
objection  to  the  question  calling  for 
the  conversation,  and  allowed  the  wit- 
ness to  state  only  the  fact  that  he  had 


CHAP.  VIII.] 


WITNESSES:    PARTIES. 


[§  468. 


is  incompetent,  no  matter  what  is  the  technical  character  of  the 


one.  Although  such  a  question  is  upon 
the  threshhold  of  forbidden  ground,  I 
do  not  think  it  violates  the  statute, 
unless,  perhaps,  in  a  case  where  the 
mere  fact  of  a  conversation  is  the  ma- 
terial fact  to  be  proved.  The  com- 
munication made  was  the  important 
fact  in  this  case,  and  the  circumstance 
that  a  conversation  was  had  was  im- 
material, and  no  more  important  than 
would  be  the  circumstance  that  the 
defendant  had  seen  Schnauber  on  a 
certain  day.  Besides,  the  plaintiffs 
could  not  have  been  injured  by  the 
answer.  The  notice  to  Schnauber 
was  proved  by  one  witness  who  was 
present  and  heard  it,  and  by  Hoyt 
himself  when  he  purchased  the  goods, 
that  Schnauber  told  him  he  had  re- 
ceived the  notice,  and  if  there  had 
been  no  evidence  of  the  conversation 
itself,  the  result  would  not  have  been 
changed."  Church,  C.  J.,  Hier  v. 
Grant,  47  N.  Y.  280. 

The  Iowa  statute  (which  is  sub- 
stantially the  same  as  that  of  New 
York)  is  as  follows  :  — 

"No  party  to  any  action  or  pro- 
ceeding, nor  any  person  interested  in 
the  event  thereof,  nor  any  person 
from,  through,  or  under  whom  any 
such  party  or  interested  person  de- 
rives any  interest  or  title,  by  assign- 
ment or  otherwise,  and  no  husband  or 
wife  of  any  said  party  or  person  shall 
be  examined  as  a  witness  in  regard  to 
any  personal  transaction  or  communi- 
cation between  such  witness  and  a 
person  at  the  commencement  of  such 
examination,  deceased,  insane,  or  lu- 
natic, against  the  executor,  adminis- 
trator, heir  at  law,  next  of  kin,  as- 
signee, legatee,  devisee,  or  survivor  of 
such  deceased  person,  or  the  assignee 
or  guardian  of  such  insane  person  or 
lunatic.  But  this  prohibition  shall 
not  extend  to  any  transaction  or  com- 


munication as  to  which  any  such 
executor,  administrator,  heir  at  law, 
next  of  kin,  assignee,  legatee,  dev- 
isee, survivor,  or  guardian  shall  be 
examined  on  his  own  behalf,  or  as  to 
which  the  testimony  of  such  deceased 
or  insane  person  or  lunatic  shall  be 
given  in  evidence." 

''  Briefly  stated,"  says  Day,  J.,  in 
construing  this  statute,  in  Cannady  v. 
Johnson,  40  Iowa,  589,  "  so  far  as 
applicable  to  the  present  question,  this 
section  prescribes  the  following  rule 
of  exclusion  :  '  No  party  to  an  action, 
or  person  interested  in  the  event 
thereof,  shall  be  examined  as  a  wit- 
ness in  regard  to  any  personal  trans- 
action or  communication  between  such 
witness  and  a  person  at  the  com- 
mencement of  such  examination,  de- 
ceased, against  the  executor,  heir  at 
law,  or  next  of  kin  of  such  deceased 
person.' 

"  In  order  to  effect  the  exclusion, 
the  proposed  testimony  must  be  against 
the  executor,  heir  at  law,  or  next  of 
kin.  To  the  existence  of  this  con- 
dition it  is  necessary  that  the  party 
toward  whom  the  testimony  is  directed 
must  be  in  a  condition  to  be  affected 
by  it.  The  testimony  is  to  be  ex- 
cluded when  it  is  offered  against  such 
person,  that  is,  when  he  is  a  party  to 
the  jn-oceeding,  and  in  a  condition  to 
be  legally  affected  by  it.  This  being, 
as  we  believe,  the  j)roi)er  construction 
of  the  rule  of  exclusion  embraced  in 
this  section,  we  are  prepared  to  con- 
sider the  exception  which  this  section 
engrafts  upon  it.  This  prohibition 
shall  not  extend  to  any  transaction  or 
connnunication  as  to  which  any  such 
executor,  heir  at  law,  or  next  of  kin 
shall  be  examined  on  his  own  behalf  ; 
that  is,  if  an  executor,  heir  at  law,  or 
next  of  kin  is  a  party  to  an  action,  and 
in  his  own  behalf  is  examined  respect- 

447 


§  468.] 


THE   LAW    OF   EVIDENCE. 


[book  II. 


suit,  or  who  may  have   been    present   at  the  communications.^ 


ing  any  personal  transaction  or  com- 
munication between  the  deceased  and 
the  opposite  party,  or  a  third  person 
interested  in  the  event  of  the  suit, 
then  such  other  party  or  interested 
person  may  testify  respecting  the  same 
transaction  or  communication. 

"  This  action  is  against  the  admin- 
istrator of  W.  C.  Johnson,  deceased. 
He  is  the  sole  party  defendant. 
Against  him  the  plaintiff  is  not  com- 
petent, under  the  rule  above  named, 
to  testify  as  to  any  personal  transac- 
tion or  communication  which  occurred 
between  plaintiff  and  the  deceased. 
The  fact  that  the  widow  of  the  de- 
ceased has  testified  respecting  the  set- 
tlement of  the  account,  does  not  open 
the  way  for  plaintiff  to  testify  respect- 
ing such  personal  transaction  and  com- 
munications." 

1  Hatch  V.  Pengnet,  64  Barb.  189. 

"  The  question  of  the  competency 
of  the  plaintiff  to  testify  was  settled 
in  Hay  ward  v.  French,  12  Gray,  459. 
The  death  of  one  of  several  joint  con- 
tractors, who  are  defendants,  does  not 
bring  the  case  within  the  exceptions 
to  the  statute,  so  as  to  render  the 
other  party  incompetent.  It  is  only 
the  death  of  a  sole  party  to  a  contract 
or  cause  of  action  in  issue  and  on 
trial,  or  where  several  joint  promis- 
ors are  sued,  the  death  of  all  of  them, 
that  operates  to  exclude  the  other 
party  from  testifying  in  his  own  fa- 
vor." Bigelovv,  C.  J.,  Goss  v.  Austin, 
11  Allen,  526. 

Under  the  Pennsylvania  statute  we 
have  the  following:  — 

"  The  next  assignment  raises  the 
question  whether  the  plaintiff  was  a 
competent  witness ;  and  if  so,  whether 
the  facts  proposed  to  be  proved  by 
him  were  materiel  and  relevant  to  the 
issue?  He  purcliased  the  lot  upon 
which  the  trespass  is  alleged  to  have 

448 


been  committed  from  Bricker,  to 
whom  Hughes,  by  deed  dated  March 
13,  1854,  conveyed  it,  '  reserving, 
however,  the  road  as  it  is.' 

"By  a  subsequent  deed,  dated  Au- 
gust 1,  1864,  Hughes  conveyed  the 
adjoining  land,  known  as  '  The  Fur- 
nace Property,'  to  the  defendants, '  to- 
gether with  all  and  singular  the  build- 
ings, improvements,  ....  ways,  &c., 
thereunto  belonging,  or  in  any  wise 
appertaining.'  Under  this  deed  the 
defendants  claimed  the  right  to  the 
use  of  the  way  or  road  in  question, 
alleging  that  it  was  the  road  reserved 
in  the  deed  of  Hughes  to  Bricker. 
The  court  rejected  the  plaintiff  as  in- 
competent to  prove  matters  occurring 
between  himself  and  Hughes,  the  lat- 
ter having  died  before  the  trial.  But 
was  he  an  incompetent  witness  for  the 
purpose  for  Avhich  he  was  offered  ? 
He  was  not  called  to  testify  to  any- 
thing connected  with  the  sale  and  con- 
veyance of  the  lot  to  Bricker,  upon 
which  the  trespass  is  alleged  to  have 
been  committed,  or  in  relation  to  the 
sale  and  conveyance  of  the  Furnace 
Property  to  the  defendants,  under 
which  the  right  of  way  is  claimed. 
He  was  offered  for  the  purpose  of 
proving  matters  having  no  connection 
with  either  conveyance.  He  pur- 
chased from  Hughes  a  lot  containing 
nine  acres,  adjoining  the  one  sold  to 
Bricker.  Why  was  he  not  competent 
to  prove  that  there  was  a  road  through 
'  the  nine  acre  lot  ?  '  That  there  was 
such  a  road,  and  that  its  location  was 
changed,  were  facts  independent  of 
the  deed  for  the  lot,  and  wholly  un- 
connected with  the  contracts  between 
Hughes  and  Bricker,  and  Hughes  and 
defendants,  which  are  involved  in  this 
action;  facts  which,  if  not  true,  could 
be  disproved  by  persons  in  the  neigh- 
borhood as  readily  as  by  Hughes  him-  * 


CHAP.  VIII.] 


WITNESSES  :   PARTIES. 


[§  468. 


Whether  the  exception  touches  cases  in  which  the  evidence  is 
documentary,  is  doubtful.     But  it  has  been  held  that  when  the 


self,  if  he  were  living.  Why,  then, 
should  the  plaintiif's  mouth  be  closed 
in  regard  to  these  matters,  if  Hughes 
was  dead  ?  and  if  not,  why  was  he  not 
equally  competent  to  prove  that,  when 
Hughes  tendered  the  deed  for  the  lot, 
it  contained  a  reservation  of  the  road, 
and  that  he  refused  to  accept  it,  and 
then  Hughes  had  the  reservation 
erased  ?  The  defendants  were  not 
claiming  a  road  through  '  the  nine 
acre  lot.'  Why,  then,  was  the  plain- 
tiff not  competent  to  prove  the  facts 
for  which  he  was  offered  ?  It  is  no 
answer  to  say  that  he  was  not  compe- 
tent because  Hughes  was  dead.  The 
act,  allowing  parties  interested  to  be 
witnesses,  rendered  him  a  competent 
witness,  unless  he  is  disqualified  by 
the  proviso  which  declares  that  the 
act  shall  not  apply  '  where  the  as- 
signor of  the  thing  or  contract  in  ac- 
tion is  dead.'  If,  in  legal  contempla- 
tion, Hughes  is  to  be  regarded  as  the 
assignor  of  the  alleged  right  of  way 
over  '  Bricker  lot,'  the  plaintiff  was 
not  a  party  to  the  transaction,  nor  was 
he  called  to  testify  anything  concern- 
ing it.  Surely  the  proviso  was  not 
intended  to  exclude  parties  from  be- 
ing witnesses,  where  the  assignor  of 
the  thing  or  contract  in  action  is 
dead,  if  they  were  not  parties  to  the 
transaction,  and  are  not  called  to  tes- 
tify to  anything  that  took  place  be- 
tween themselves  and  the  deceased 
assignor.  If  it  was,  then  no  party 
claiming  title  through  or  under  a  de- 
ceased grantor,  however  remote  the 
conveyance,  can  be  a  witness  where 
the  land,  or  some  estate  in  it,  is  the 
subject  of  the  action.  The  proviso 
must  have  a  reasonable  interpretation, 
and  it  must  not  be  so  construed  as  to 
defeat  the  very  purpose  of  the  act. 
It  was  intended  to  exclude  parties  to 
VOL.  I.  29 


the  transaction  from  being  witnesses 
in  regard  to  it,  where  the  opposite 
party  is  dead  and  his  rights  have  be- 
come vested  in  others  by  his  own  act 
or  by  operation  of  law.  But  it  never 
could  have  been  intended  to  exclude 
persons  who  were  not  parties  to  the 
transaction,  and  who  are  not  called  to 
testify  anything  respecting  it.  The 
plaintiff  was,  therefore,  a  competent 
witness."  Williams,  J.,  McFerren  v. 
Mont  Alto  Iron  Co.  76  Penn.  St.  186. 

To  the  same  effect  is  the  following 
ruling  in  Michigan  :  — 

"  Some  questions  arose  concerning 
the  admissibility  of  testimony  from 
the  plaintiff,  about  matters  claimed  to 
come  within  the  statute  precluding 
him  from  testifying  to  what  '  must 
have  been  equally  within  the  knowl- 
edge '  of  the  deceased.  C.  L.  §  5968. 
Most  of  the  facts  sought  to  be  intro- 
duced by  his  testimony  related  to  what 
was  done  in  the  absence  of  the  de- 
ceased, including  the  forwarding  and 
removal  of  property  destined  for  his 
use,  he  being  in  Texas,  and  the  trans- 
actions being  confined  to  occurrences 
in  Michigan,  and  on  the  way  between 
the  two  states.  Some  testimony  re- 
ferred to  the  value  of  property  and 
transportation.  These  matters  could 
not,  for  the  most  part,  be  known  to 
the  deceased  at  all,  and  his  only  infor- 
mation must  have  been  by  liearsay. 
It  is  not,  therefore,  necessary  to  go 
into  any  examination  of  the  statute, 
which  cannot  possibly  apply  to  such 
facts."  Campbell,  J.,  Wheeler  y.  Ar- 
nold, 30  Mich.  11.  307. 

Under  the  New  York  statute,  as  we 
have  seen,  the  surviving  party  may 
ordinarily  prove  the  fact  of  a  conver- 
sation with  the  deceased,  though  not 
its  details.  Hier  i-.  Grant,  4  7  N.  Y. 
278. 

449 


§  469.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


Does  not 
extend  to 
contracts 
not  made 
exclusively 
■  with  de- 
ceased. 


representatives  of  the  deceased  have  the  means  of  proving  the 
document  by  independent  evidence,  the  case  is  not  within  the 
exception.^ 

§  469.  The  exception  does  not  incapacitate  where  the  suit  is 
against  co-defendants  of  whom  only  one  is  dead,  when 
the  contract  was  made  either  with  the  living  co-defend- 
ants, or  with  the  living  and  the  dead  concurrently .^ 
So  when  the  deceased  contracting  party  was  repre- 
sented in  the  bargain  by  an  agent  who  is  capable  of 
testifying,  then  the  other  contracting  party,  unless  expressly 
excluded  by  statute,  may  be  a  witness.^  Under  those  statutes 
which  confine  tl^e  exception  to  suits  against  executors,  &c.,  the 
death  of  an  agent  of  one  party,  through  whom  the  contract  was 
made,  does  not  prevent  the  surviving  party  from  testifying  to 

In  the  same  state  it  is  held  that  think,  be  regarded  as  settled,  under 
the  exception  does  not  preclude  a  the  present  provision  of  the  Code, 
party  from  testifying  to  statements  that  the  three  hundred  and  ninety- 
made  by  a  deceased  person  to  a  third  ninth  section  does  not  preclude  a  party 
party;  and  this  is  so  although  the  wit-  from  testifying  to  the  statements  of  a 
ness  participated  in  the  conversation,  person  deceased,  made  to  a  third  per- 
so  long  as  his  testimony  is  limited  to  son  in  the  hearing  of  the  witness." 
what  was  not  personal  between  him  Johnson,  J.,  Gary  v.  White,  52  N. 
and  the  deceased;  nor  does  the  fact  Y.  139. 

that  the  third  person  was  the  counsel  ^  Moulton  v.  Mason,  21  Mich.  364. 

of  the  deceased  affect  the  legality  of  See   Thurman   v.  Mosher,  3    Thomp. 

the  testimony.      Church,    C.  J.,  and  &  C.  583;  1  Hun,  344;  but  see  supra, 

Allen,  J.,  dissenting.      Gary  v.  White,  §  467 

52  N.  Y.  138.  2  Hay  ward  v.  French,  16  Gray,  512; 

"The  fact  that  another  person  is  Doody  v.  Pierce,  9  Allen,  144;  Hub- 
competent  to  speak  goes  far  to  take  bell  v.  Hubbell,  22  Oh.  St.  208;  Hall 
the  case  out  of  the  substantial  reason  v.  State,  39  Ind.  301 ;  Gavin  v.  Buckles, 


of  the  statute,  and  it  does  not  fall 
within  its  letter.  It  is  neither  per- 
sonal transaction  nor  communication 
between  the  witness  and  the  party  de- 
ceased, and  these  alone  cannot  be 
proved  by  the  testimony  of  a  party. 
Under  the  existing  laws,  the  rule  is 
that  a  party  is  competent  as  a  witness. 
His  exclusion  is  to  be  made  out  by  the 


41  Ind.  528;  Isenhour  v.  State,  64  N. 
C.  640;  Brower  v.  Hughes,  64  N.  C. 
642;  Leaptrot  v.  Robertson,  3  7  Ga. 
586  ;  McGehee  v.  Jones,  41  Ga.  123  ; 
Graham  v.  Howell,  50  Ga.  203  ;  Payne 
V.  Elyea,  50  Ga.  395  ;  North  Ga.  IVlin- 
ing  Co.  V.  Latimer,  51  Ga.  47. 

8  Brown   v.  Brightman,   11    Allen, 
227,  cited  supra;  Hildebrant  v.  Craw- 


party  alleging  his  incompetency  as  to  ford,  6  Lans.  502;  Payne  v.  Elyea,  50 

any    particular   matter.     Simmons    v.  Ga.  395;  Jacquin  v.  Davidson,  49  111. 

Sisson,  26  N.  Y.  277,  and  Lobdell  v.  82  ;  though  see  Spencer  v.  Trafford, 

Lobdell,  36  Ibid.  333,  334,  sustain  the  42  Md.  1;   Mumm  v.   Owens,  2  Dill, 

views  above  expressed.     It  must,  we  475. 

450 


CHAP.  VIII.]  WITNESSES  :    PARTIES.  [§  472. 

the  contract.^  But  under  statutes  which  exclude  the  surviving 
party  to  a  contract,  the  death  of  a  contracting  agent  excludes  the 
surviving  party  who  contracted  with  him.^ 

§  470.  The  conflict  must  be  really  between  the  dead,  whose 
mouth  is  closed,  and  the  living,  who  is  able  to  speak,    Excention 
in  order  to  enable  the  statute  to  apply. ^     Consequently   '^"^^  ^P^ 

'■  ^   ;f  -^  ''     cover  inter- 

when  a  third  party  interposes  a  claim  to  property  on    veningin- 

tcrcsts* 

which  a  fi.fa.  has  been  levied,  the  execution  plaintiff  is 
ordinarily  a  competent  witness  on  the  trial  of  the  issue,  though 
the  execution  defendant  is  dead.*  So  in  an  action  by  a  widow 
against  an  alleged  fraudulent  grantee  of  her  husband,  she  may 
testify  as  to  conversations  with  the  defendant ;  ^  nor  does  the  ex- 
ception, in  questions  concerning  the  validity  of  a  will,  affect  the 
relations  of  the  beneficiaries.^ 

§  471.  The  administrator  or  executor  of  the  deceased  party  is 
competent,  though  the  other  contracting  party  is,  under   Exception 
the  statute,  incompetent.'^     But  the  exception  has  been   exdude' 
ruled  not  to  exclude  administrators  in  suits  against  ad-   ffin""!^- 

o  trator  from 

ministrators.^     In    Pennsylvania,  however,    it   is   held   testifying 

•  1      1     1   1  ...       in  his  OWD 

that  when  one  party  is  excluded  by  statute  the  other  is   behalf, 
excluded  by  the  policy  of  the  law.^ 

§  472.  It  has  been  held  that  the  exception  excludes  a  partner, 
in  a  suit  brought  by  him  to  obtain  an  account  against  the  firm, 
when  a  deceased  partner's  executors  are  parties  to  the  cause.^^ 
On  the  other  hand,  it  has  been  said  that  the  exception  does  not 

1  Am.  Life  Ins.  Co.  v.  Shultz,  2  bles  the  opposite  party  to  testify,  even 
Weekly  Notes  of  Cases  (Penn.),  665.  as  to   communications   with    tlie   de- 

2  First  Nat.  Bk.  v.  Wood,  26  Wise,  ceased.  Ballon  v.  Tilton,  52  N.  H. 
500;    McNab    v.    Stewart,   12   Minn.  605. 

407;  Crenshaw  v.  Robinson,  37  Ga.  18.  8  Stearns  v.  Wright,  51  N.  H.  606. 

3  Downs  V.  Belden,  46  Vt.  674;  »  Karns  v.  Tanner,  66  Penn.  St. 
Pattison  v.  Armstrong,  74  Penn.  St.  297;  Pattison  r.  Armstrong,  74  Penn. 
476.  St.  476;  Grouse  v.   Staley,  3  Weekly 

*  Anderson  v.  Wilson,  45   Ga.   25.  Notes,    83 ;    Kimble    v.    McBride,    3 

See  Ouzts  v.  Seabrook,  4  7  Ga.  359.  Weekly  Notes  of  Cases,  88. 

fi  Sanborn  v.  Lang,  41   Md.  107.  i°  IMcKaig    r.    Ilebb,  42  Md.    227. 

^  Garvin  i\  Williams,  50  Mo.  206.  In   Vermont   and    Mas-sachusotts    the 

■^  Howe  V.  Merrick,  11   Gray,   129;  statute  does  not  exclude  in  any  cases 

Mclntyrc  c.  Mtddrim,  40  Ga.  490.  See  against  surviving  partners  or  co-con- 

Stearns  v.  Wright,  51  N.  II.  600.     In  tractors.     Reed  v.  Sturtevant,  40  Vt. 

New  Hampshire  it  has  been  ruled  that  521;  Hayward  i'.    French,    12  Gray, 

if  an  administrator  testifies,  this  ena-  453;  Goss  v.  Austin,  11  Allen,  525. 

451 


§  474.] 


THE   LAW   OF   EVIDENCE. 


[book  n. 


preclude  a  suit  by  a  surviving  partner  against  the  partnership,  to 
Surviving  I'ecover  a  debt  due  him  by  the  partnership ;  the  suit 
partner.  j-^q^  being  against  an  executor  or  administrator.^  The 
question,  in  this  case,  depends  upon  the  structure  of  the  local 
statute. 

§  473.  The  exception,  it  has  been  ruled,  relates  only  to  per- 
Covers  real  SOUS  who  are  parties  to  the  issue  on  trial,  and  not  to 
t"hnf ai  those  wlio  were  simply  technical  parties  to  the  original 
parties.  contract.^  Nor  does  it  exclude  the  children  of  the  con- 
tracting party .3  But  a  real,  who  is  not  a  nominal  party  to 
the  record,  is  excluded  by  the  exception.^  In  Alabama  it  has 
been  held  by  a  majority  of  the  supreme  court,^  that  under  the 
exception,  the  transferror  or  assignor  of  the  claim  sued  on  by 
the  plaintiff  is  as  inadmissible  as  would  be  the  plaintiff  him- 
self.6 

Does  not  §  474.  Unless  the  exception  expressly  covers  all  suits 

transaction  against  administrators,  it  does  not  exclude  the  plain- 
after  death  ^[Q  from  proving  matters  occurring  since" the  decease  of 
ceased.        the  party  of  whom  the  defendant  is  executor.^ 


1  Bragg  V.  Clark,  50  Ala.  363. 

2  Hamilton  v.  R.  R.  10  R.  I.  538; 
Looker  v.  Davis,  47  Mo.  140;  Wil- 
lingliam  v.  Smith,  48  Ga.  580.  But 
see,  contra,  Blood  v.  Fairbanks,  50 
Cal.  420. 

8  Anderson  v.  Hance,  49  Mo.  159. 

*  Stallings  v.  Hinson,  49  Ala.  92; 
McBride's  Appeal,  72  Penn.  St.  482; 
Eslileman's  Appeal,  74  Penn.  St.  42. 

5  Peters,  J.,  dissenting. 

^  Louis  V.  Easton,  50  Ala.  470. 

T  Brown  v.   Brown,  48  N.   H.  90 
Cousins    V.    Jackson,    52    Ala.    262 
Witherspoon  v.  Blewett,47  Miss.  570 
Poe  V.  Domec,  54  Mo.  119;  Martin 
U.Jones,  59  Mo.  181;  McGlothlin  v. 
Hemry,  59  Mo.  213. 

"The  statute  provides  that  'No 
person  shall  be  disqualified  as  a  wit- 
ness in  any  civil  suit  or  proceeding  at 
law  or  in  equity,  by  reason  of  his  in- 
terest in  the  event  of  the  same  as  a 
party,  or  otherwise;  but  such  interest 

452 


may  be  shown  for  the  purpose  of 
affecting  his  credibility ;  provided, 
that  in  actions  where  one  of  the  orig- 
inal parties  to  the  contract  or  cause  of 
action  in  issue  and  on  trial  is  dead, 
or  is  shown  to  the  court  to  be  insane, 
the  other  party  shall  not  be  admitted 
to  testify  in  his  own  favor,'  &c.  It 
will  be  seen  that  all  parties  are  made 
competent  witnesses  by  this  section  of 
the  statute,  but  where  one  of  the  par- 
ties to  a  contract  in  issue  is  dead,  the 
other  party  shall  not  be  permitted  to 
testify  in  his  own  favor.  It  was  not 
intended  by  the  statute  that  in  cases 
consisting  of  a  series  of  contracts  and 
transactions,  each  of  which  were  put 
in  issue  by  the  pleadings,  some  of 
which  transactions  had  been  had  with 
a  party  who  had  since  died,  and  others 
of  the  transactions  had  been  had  with 
others,  or  consisted  of  facts  which  had 
taken  place  since  his  death,  the  party 
living  should  be  excluded  from  testi- 


CHAP.  VIII.] 


WITNESSES  :    PARTIES. 


[§  476. 


§  475.  The  exception,  in  statutes  where  the  exclusion  relates 
only  to  the  surviving  party  in  contracts,  does  not  in-    Does  not 
elude   torts.     Hence   in  a  suit  for   damages  against  a   su^tt^fl,^ 
party  for  killing  plaintiff's  husband,  the  defendant  is   'nj"r'es 

^        J  o    i  causing 

a  competent  witness  on  his  own  behalf.     In  such  case   death. 
there  is  no  contract  or  cause  of  action  to  which  the  deceased  was 
a  party,  and  his  death  was  a  sine  qua  7ion  to  the  existence  of 
the  cavise  of  action.^ 

§  476.  The  object  of  the  statutes   being  to  rehabilitate,  not 
incapacitate  witnesses,  the  exception  will  be  held,  un-   dos  not 
less  otlierwise  expressly  providing,  not  to  make  incom-   competent 

fying  to  facts  occurring  since  the  death  In  Missouri  the  position  in  the  text 

of  the  party  to  the  first  transaction,  is  thus  vindicated :  "The  statute  (2 

Such  an    exchision  would  be  wholly  Wagn.   Stat.   p.    1372,    §  1)    permits 

outside  of  the  object  and  intention  of  parties  to  testify  in  suits;  '  provided, 

the    legislature.     The    object   of   the  that  in  actions  where  one  of  the  orig- 

law   was   to    prevent  one  party  from  inal  parties  to  the  contract  or  cause 

testifying  to  a  contract  in  issue,  where  of  action  in  issue  and  on  trial  is  dead, 

the    lips    of    the    other    party  were  or  is  shown  to  the  court  to  be  insane, 

closed,  so  that  his  version  of  the  con-  the  other  party  shall  not  be  admitted 

tract  could  not  be  given;  but  it  could  to  testify  in  his  own  favor.' 

answer   no   valuable   purpose   to  ex-  "  In  the  present  case  there  was  no 

elude  a  party  from  testifying  to  facts  contract  or  cause  of  action  to  which 

about   which    the    dead   party  knew  the   deceased  husband  was   a   party. 


nothing  in  his  lifetime,  and  which 
was  wholly  transacted  with  others. 
Stanton  v.  Ryan,  41  Mo.  510."  Poe 
V.  Domec,  54  Mo.  123,  Vories,  J. 

"  It  has  been  held  by  this  court,  in 
several  cases,  that  it  was  not  intended 
by  the  statute  to  exclude  one  party 
when  the  other  was  dead,  where  the 
evidence  related  to  transactions  had 
with  others  and  to  which  the  deceased 
party  was  no  party,  and  with  which  he 
had  no  knowledge  of  or  connection, 
or  consisted  of  facts  and  transactions 
which  had  taken  place  since  the  death 
of  the  deceased  party.  Stanton  v. 
Ryan,  41  Mo.  510  ;  Looker  v.  Davis, 
47  Mo.  140  ;  Poe  v.  Domec,  54  Mo. 
119."  Martin  u.  Jones,  59  Mo.  187. 
Vories,  J. 

^  Entwhistle  v.  Feighner,  60  Mo. 
214.  See,  however,  contra,  Sherlock 
V.  Ailing,  44  Ind.  184. 


The  proviso  in  the  statute  was  enacted 
for  the  purpose  of  putting  parties  on 
an  equal  footing,  and  not  allowing  a 
living  party  to  give  his  version  of  a 
contract  when  he  could  not  be  con- 
fronted by  the  other  party  in  conse- 
quence of  death.  When  the  husband 
was  killed,  then  it  was  for  the  first 
time  that  the  cause  of  action  accrued 
to  the  plaintiff  as  his  widow.  Had 
the  husband  survived,  this  action 
never  could  have  been  brought.  It  is 
an  action  in  which  plaintilY  and  de- 
fendant only  could  be  parties,  for  it 
did  not  arise  till  after  the  husband's 
death.  The  defendant,  therefore,  was 
a  competent  witness,  and  more  espe- 
cially so  in  this  case,  as  the  plaintiff 
h.ad  the  benefit  of  her  husband's  dec- 
larations, and  the  court  erred  in  ruling 
otherwise."  Entwhistle  v.  Feighner, 
60  Mo.  214,  215,  Wagner,  J. 

453 


§  477.] 


THE   LAW   OF   EVIDENCE, 


[book  II. 


witness        petent  any  witness  previously  competent.^    Thus  where, 

previously      -^    ,  *'  ,  . 

competent,  prior  to  the  statute,  a  defendant  is  competent  to  testify 
for  his  co-defendant,  he  is  not  made  incompetent,  after  the  stat- 
ute, by  the  fact  that  the  suit  is  against  executors.^  So  the  ex- 
ception in  the  statute  does  not  prevent  a  party  from  testif}'ing, 
as  he  could  have  done  before  the  statute,  to  his  book  of  original 
entries.^  So  in  a  contest  between  creditors  and  the  executors  of 
a  creditor  of  an  insolvent's  estate,  it  was  held  that  the  insol- 
vent debtor  was  competent  as  a  witness  to  prove  fraud  practised 
upon  him  by  the  executors'  testator.* 

§  477.  Suppose  that  on  the  trial  of  a  case,  when  the  parties 


^  See  observations  of  Sharswood , 
J.,  in  Am.  Life  Ins.  Co.  v.  Shultz,  2 
Weekly  Notes  of  Cases,  665. 

2  ' '  The  first  assignment  raises  the 
question  of  the  competency  of  Camp- 
bell to  testify  in  behalf  of  his  co-de- 
fendant in  the  judgment.  The  plain- 
tiff being  an  executor,  and  the  evi- 
dence relating  to  what  transpired  dur- 
ing the  life  of  his  testator,  it  is  con- 
tended that  the  Act  of  15th  April, 
1869,  is  inapplicable.  Prior  to  this  act, 
the  general  rule  in  Pennsylvania  un- 
doubtedly was,  that  a  party  to  the 
record  was  incompetent  to  testify. 
Generally,  a  principal  debtor  is  not  a 
competent  witness  for  a  surety  in  an 
action  against  the  latter.  Whenever, 
however,  the  suit  is  ended  as  to  the 
principal,  and  the  defence  made  by 
the  surety  is  personal  as  to  him,  as 
were  the  facts  here,  the  principal  is 
substantially  discharged  from  the  rec- 
ord. Although  no  regular  feigned  is- 
sue be  formed  in  practice,  yet,  under 
the  order  of  court,  the  trial  is  in  the 
nature  of  one  and  embraces  only  the 
parties  thereto.  Campbell  was  there- 
fore a  competent  witness.  Talmage 
et  al.  V.  Burlingame  et  al.  9  Barr,  21. 
This  assignment  is  not  sustained." 
Mercur,  J.,  Simpson  v.  Bovard,  74 
Penn.  St.  360. 

«  Leggett  V.  Glover,  71  N.  C.  211. 
454 


See,  also,  Kelton  v.  Hill,  58  Me.  116  ; 
Barnett  v.  Steinbach,  1  Weekly  Notes 
of  Cases,  335. 

*  Shertz  v.  Norris,  2  Weekly  Notes, 
637. 

"  The  learned  judge  below  consid- 
ered that  the  witness  Lentz  was  ren- 
dered incompetent  under  the  provi- 
sions of  the  Act  of  loth  April,  1869 
(Pamph.  L.  30),  entitled  '  An  act  al- 
lowing parties  in  interest  to  be  wit- 
nesses.' We  think  that  this  was  an 
errpr.  That  act  was  intended  as  an 
enlarging  statute.  No  person  compe  - 
tent  to  testify  before  the  passage  of 
the  act  was  rendered  thereafter  in- 
competent either  by  the  words  or  the 
spirit  of  the  law.  Regarding  the  is- 
sue below  as  an  action  by  executors, 
the  statute  declares  that  it  shall  not 
apply  in  such  an  action  ;  in  other 
words,  that  the  question  of  compe- 
tency or  incompetency  of  witnesses 
shall  remain  as  if  the  statute  had  not 
been  enacted.  This  was  an  issue  be- 
tween creditors,  to  which  Lentz  was 
no  party,  and  whatever  interest  he 
might  have  in  the  question,  he  could 
neither  gain  nor  lose  by  the  verdict, 
nor  could  it  be  given  in  evidence  in 
any  subsequent  proceeding  for  or 
against  him.  The  death  of  Hanbest 
could  have  no  effect  on  the  question.'' 
Sharswood,  J.,  Ibid. 


CHAP.  VIII.] 


WITNESSES  :    PARTIES. 


[§  478. 


are  both  living,  one  of  the  parties  is  examined,  and  subsequently 
both  parties  die,  can,  after  death,  the  testimony  of  the  Does  not 
deceased  party  be  reproduced  in  a  second  suit?  So  telum'^fny 
far  as  concerns  principle,  it  ought  to  be,  as  the  oppo-  of  parties 
site  party,  living  at  the  time  of  the  giving  of  the  tes-  fore  death, 
timony,  had  the  opportunity  of  explanation. ^  So  where  on  a 
second  trial  of  a  cause  involving  the  same  subject  matter,  but 
after  the  form  of  action  had  been  changed  and  an  administratrix 
substituted  for  the  deceased  plaintiff,  the  notes  of  the  testimony 
given  by  the  latter  on  the  former  trial,  and  to  be  verified  by  the 
oath  of  the  judge  who  tried  the  cause,  were  offered  in  evidence  ; 
it  was  held  (reversing  the  judgment  below),  that  the  action  did 
not  fall  within  the  proviso  to  the  statute ;  and  that  the  evidence 
should  have  been  admitted.^  Intermediate  incapacitation  of  a 
witness,  therefore,  does  not  exclude  his  deposition  taken  when  he 
was  competent.^  But  when  a  deceased  party's  deposition  is  put 
in  evidence,  the  other  party  being  still  living,  such  other  party 
should  be  admitted  as  a  witness  in  reply.* 

§  478.  At  common  law,  as  we  have  seen,^  husband  and  wife 
cannot  testify  as  against  the  other  to  communications  received 


^  Emerson  v.  Bleakley,  2  Abb.  (N. 
Y.)  App.  22  ;  Collins  v.  Smith,  78 
Penn.  St.  423  ;  Mumm  v.  Owens,  2 
Dill.  475. 

2  Evans  v.  Reed,  78  Penn.  St. 
415;  Speyerer  v.  Bennett,  3  Weekly 
Notes  of  Cases,  213.  See  Roberts  v. 
Yarboro,  41  Tex.  449. 

8  Supra,  §  198. 

*  Monroe  v.  Napier,  52  Ga.  385.  See 
Speyerer  v.  Bennett,  supra. 

It  has  been  held  in  Maine,  that  under 
the  R.  S.  1871,  c.  82,  §  87,  the  defend- 
ant cannot  introduce  the  testimony  of 
the  plaintiff's  intestate,  as  given  at  a 
previous  trial  of  the  action,  and  then 
put  himself  upon  the  stand  as  a  wit- 
ness to  contradict  it.  "  At  a  former 
trial  of  this  cause,"  said  Appleton,  C. 
J.,  "  Ephraim  Folsom,  the  plaintifT's 
intestate,  was  a  witness.  The  coun- 
sel for  the  defendant  introduced  his 
testimony  as  then  given.     Having  in- 


troduced it,  he  offered  the  defendant 
as  a  witness  to  contradict  it,  but  the 
court  ruled  his  testimony  inadmissible. 
This  was  correct.  The  testimony  of 
Folsom  at  a  former  trial  was  offered 
by  the  defendant.  Having  offered  it, 
he  did  not  therefore  acquire  the  right 
to  contradict  it.  It  is  sufliciont  that 
the  evidence  was  not  in  the  form  of  a 
deposition.  If  it  were  it  may  well  be 
doubted  whether  the  adverse  party 
could,  within  R.  S.  1871,  c.  82,  §  87, 
offer  the  deposition  of  his  deceased 
opponent  for  the  purpose  of  rendering 
his  own  testimony  admissible,  when 
otherwise  it  would  not  be.  The  de- 
fendant does  not  bring  himself  within 
any  of  the  exceptions  in  §  87.  Kelton 
I'.  Ilill,  59  Me.  2.09."  Appleton,  C. 
J.,  Folsom  V.  Chapman,  59  Maine, 
195. 
6  Supra,  §  427. 

455 


§  479.] 


THE  LAW   OF  EVIDENCE. 


[book  II. 


in  their  confidential  intercourse.  This  rule  is  not  or- 
dinarily affected  by  statutes  permitting  them  to  testify 
for  or  against  the  other.  ^  Nor  does  the  statute  as  to 
parties  generally  affect  the  common  law  incapacity  of 
husband  and  wife.^ 
§  479.  So  far  as  concerns  confidential  communications  with 
counsel,  a  party  who  offers  himself  as  a  witness,  and 
undertakes  to  answer  certain  interrogatories  cannot,  it 
has  been  ruled,  refuse  to  answer  pertinent  cross-questions  on  the 
ground  that  they  touch  confidential  communications  from  him- 
self to  his  counsel.^     It  is  otherwise,  however,  when  the  witness 


Statutes  do 
not  touch 
common 
law  privi- 
lege of  hus- 
band and 
wife. 


Or  of  at- 
torney. 


1  People  V.  Reagle,  60  Barb.  527; 
Steen  v.  State,  20  Oh.  St.  333  ;  Noble 
V.  Withers,  36  Ind.  193  ;  Jackson  v. 
Jackson,  40  Ga.  150;  Costello  v.  Cos- 
tello,  41  Ga.  613.     See  supra,  §  430. 

'^  See  cases  supra,  §430;  Symonds 
V.  Peck,  10  How.  (N.  Y.)  Pr.  395; 
Rich  V.  Husson,  4  Sandf.  115.  See, 
as  to  divorce  cases,  Thayer  v.  Thayer, 
101  Mass.  Ill;  Winter  v.  Winter,  7 
Phila.  R.  369  ;  Bronson  v.  Bronson, 
'8  Phila.  R.  261  ;  Mitchinson  v.  Cross, 
68  111.  366 ;  Stanley  v.  Stanton,  36 
Ind.  445;  and  see  Hays  v.  Hays,  19 
Wise.  182;  Fugate  v.  Pierce,  49  Mo. 
441  ;  Owen  v.  Brockschmidt,  54  Mo. 
285. 

"  That  it  is  a  rule  of  the  common 
law,  a  wife  cannot  be  received  as  a 
witness  for  or  against  her  husband, 
except  in  suits  between  them,  or  in 
criminal  cases  where  he  is  prosecuted 
for  wrong  done  to  her,  is  not  con- 
troverted. But  it  is  argued,  because 
Congress  has  enacted  that  in  civil 
actions  in  the  courts  of  the  United 
States  there  shall  be  no  exclusion  of 
any  witness  because  he  is  a  party  to, 
or  interested  in,  the  issue  tried,  the 
wife  is  competent  to  testify  for  her 
husband.  Undoubtedly  the  act  of  Con- 
gress has  cut  up  by  the  roots  all  ob- 
jections to  the  competency  of  a  wit- 
ness on  account  of  interest.     But  the 

456 


objection  to  a  wife's  testifying  on  be- 
half of  her  husband  is  not,  and  never 
has  been,  that  she  has  any  interest  in 
the  issue  to  which  he  is  a  party.  It 
rests  solely  upon  public  policy.  To 
that  the  statute  has  no  application. 
Accordingly,  though  statutes  similar 
to  the  act  of  Congress  exist  in  many 
of  the  states,  they  have  not  been  held 
to  remove  the  objection  to  a  wife's 
competency  to  testify  for  or  against 
her  husband.  And  in  West  Virginia 
it  has  been  expressly  enacted  that  a 
husband  shall  not  be  examined  for  or 
against  his  wife,  nor  a  wife  for  or 
against  her  husband,  except  in  an  ac- 
tion or  suit  between  husband  and  wife. 
Were  there  any  doubt  respecting  the 
question,  this  statute  would  solve  it; 
for  the  Act  of  Congress  of  July  6, 
1862,  declares  that  the  laws  of  the 
state  in  which  the  court  shall  be  held 
shall  be  the  rules  of  decision  as  to  the 
competency  of  witnesses  in  the  courts 
of  the  United  States."  Strong,  J.,  Lu- 
cas I'.  Brooks,  18  Wallace,  452.  In 
Pennsylvania,  the  party's  wife,  is  ex- 
cluded when  he  is  incompetent.  StoU 
V.  Weidman,  3  Notes  of  Cases,  205; 
Taylor  r.  Kelley,  Ibid.  206. 

2  Woburn  v.  Henshaw,  101  Mass. 
193;  a£E.  Com.  v.  Mullen,  97  Mass. 
545. 


CHAP.  VIII.] 


WITNESSES  :    PARTIES. 


[§  481. 


has  not  waived  his  privilege  by  a  partial  answer  involving  the 
subject  matter  of  his  coramunications.^ 

§  480.  A  party,  it  may  be  generally  said,  when  he  becomes  a 
witness  is  subject  to  the  usual  duties,  liabilities,  and  Are  subject 
limitations  of  witnesses.^  The  statute,  for  instance,  ^^,onTot' 
does  not  affect  the  rule,  that  parol  evidence  cannot  be  ■«''f°esses. 
received  to  vary  a  written  contract.^  So,  also,  a  party  may  be 
examined  as  an  expert.*  A  party  when  so  examined  is  also 
subject  to  the  law  which  authorizes  a  party's  admissions  out  of 
court  to  be  used  in  evidence  against  him  on  trial.^  His  testi- 
mony, after  his  decease,  may  be  reproduced  on  a  future  trial, 
under  the  same  limitations  as  that  of  other  witnesses.^ 

§  481.  As  a  general  rule,  he  subjects  himself  to  the  same  lia- 
bilities on  cross-examination  as  other  witnesses ; "  and  it  is  said 


1  Montgomery  v.  Pickering,  116 
Mass.  229.      See  infra,  §  583. 

"  The  plaintiff  became  a  witness 
for  himself,  and  testified  to  material 
facts.  On  cross-examination  the  de- 
fendant's counsel  asked  what  state- 
ments he  made  to  his  attorneys  re- 
specting his  knowledge,  and  the  pur- 
pose of  making  the  deed  to  Pratt. 
This  was  objected  to  as  calling  for 
a  privileged  communication ;  and  the 
objection  was  sustained,  and  herein  is 
the  next  error  assigned.  Our  stat- 
ute (revision  of  ISGO,  §  3985;  Code  of 
1873,  §  3643)  provides  that  '  no  prac- 
tising attorney  ....  shall  be  allowed, 
in  giving  testimony,  to  disclose  any 
confidential  communication  properly 
intrusted  to  him  in  his  professional 
capacity.'  ....  If  this  question  had 
been  asked  the  attorney,  it  is  clear 
the  objection  made  should  have  been 
sustained;  and  this,  also,  at  the  com- 
mon law,  for  the  statute  is  but  declar- 
ative of  the  common  law;  and,  at  the 
common  law,  the  party  was  neither 
competent  nor  compellable  to  testify. 
Hence  such  communications  were  ef- 
fectually locked  at  the  common  law, 
and   coulil    not  be    revealed    at    all. 


While  our  statute  makes  parties  both 
competent  and  compellable  to  give 
evidence,  it  should  not  be  construed  to 
open  the  door  to  a  full  inquiry  into 
privileged  communications."  Cole,  J., 
Barker  v.  Kuhn,  38  Iowa,  395.  Coun- 
sel can  set  up  the  privilege,  notwith- 
standing the  statute.  Ibid. ;  Brand 
V.  Brand,  39  IIow.  Pr.  193.  Infra, 
§576. 

2  Wheelden  v.  Wilson,  44  Me.  11; 
Quimby  v.  Morrill,  47  Me.  4  70;  Gran- 
ger V.  Bassett,  98  Mass.  462;  McDan- 
iels  V.  Robinson,  26  Vt.  316;  Cowles 
V.  Bacon,  21  Conn.  451;  Roberts  v. 
Gee,  15  Barb.  449;  People  v.  Russell, 
46  Cal.  121. 

\  Kelly  i\  Cunningham,  1  Allen, 
473.      See  infra,  §  955. 

*  Dickenson  v.  Fitchburg,  13  Gray, 
546. 

6  Hall  I'.  The  Emily  Banning,  33 
Cal.  522. 

0  Emerson  v.  Bleakley,  2  Abb.  (N. 
Y.)  App.  22.  See  supra,  §§  178, 
477. 

7  Marx  V.  People,  63  Barb.  (N.  Y.) 
618;  Fralich  v.  People,  65  Barb.  (N. 
Y.)  48;  Varona  v.  Socarras,  8  Abb. 
(N.  Y.)   Pr.  302  ;  Anable   v.  Anable, 

457 


§  481.] 


THE   LAW   OF   EVIDKNCE. 


[book  II. 


Party  open  may  be  even  cross-examined  on  the  whole  case,  and 
not  simply  on  what  relates  to  his  examination  in  chief, ^ 
though  this  expansion  of  the  liberty  of  cross-examina- 
tion may  not  be  sustained  in  those  states  in  which  strict 
rules  of  demarcation  in  this  respect  are  maintained.^ 


examina- 
tion to 
same  ex- 
tent as 
other  wit- 
nesses. 


24  How.  (N.  Y.)  Pr.  92 ;  Brubacker  v. 
Taylor,  76  Penn.  St.  83;  State  v. 
Horne,  9  Kans.  119.  Infra,  §§  527,  955. 

1  Livingston  v.  Keech,  34  N.  Y. 
Sup.  Ct.  547.  See  Holbrook  v.  Mix, 
1  E.  D.  Smith,  154. 

■•2  Malone  v.  Dougherty,  79  Penn. 
St.  46  ;  S.  C.  2  Weekly  Notes,  180, 
Sup.  Ct.  of  Pennsylvania,  May,  1875. 
In  this  case  Woodward,  J.,  said: 
"  But  it  does  not  follow  that  the  evi- 
dence was  admissible  on  cross-exami- 
nation. The  suit  was  on  a  note  given 
on  the  30th  of  July,  1867.  The  sus- 
pension of  payment  did  not  occur  un- 
til some  weeks  afterwards.  The  ad- 
mission of  proof  that  the  plaintiffs 
had  knowledge  of  it,  would  have  in- 
volved the  admissibility  of  proof  of 
the  fact  of  the  subsequent  suspension 
itself.  And  to  make  these  details  in- 
telligible, and  to  show  their  relevancy 
to  the  issue,  it  would  have  been  nec- 
essary to  exhaust  the  knowledge  of 
the  Avitness  in  relation  to  the  effect 
on  the  interests  of  the  defendant 
which  the  suspension  produced.  The 
whole  defence  would  have  been  inter- 
jected into  the  case  upon  the  cross- 
examination  of  the  first  witness  for 
the  plaintiffs,  and  the  presentation  of 
their  rebutting  evidence  would  have 
been  rendered  inevitable.  By  such  a 
method  of  development  the  trial  of 
the  cause  would  have  been  only  con- 
fused, hampered,  and  delayed.  The 
evidence  could  have  been  offered  with 
perfect  safety,  on  the  part  of  the  de- 
fendant, in  chief  By  the  second  sec- 
tion of  the  Act  of  the  15th  of  April, 
1869,  Mr.  Seller  could  have  been  re- 
quired to  testify  '  as  if  under  cross- 

'458 


examination.'  It  is  not  apparent  how, 
by  pursuing  legitimate  forms,  the  de- 
fence would  have  been  subject  to  any 
embarrassment,  or  have  incurred  the 
loss  of  any  due  advantage.  The  of- 
fers were  properly  rejected." 

The  liberty  of  cross-examination,  in 
this  relation,  is  thus  discussed  by 
Bradley,  J.,  in  the  supreme  court  of 
the  United  States  :  "  As  to  the  ex- 
ception to  the  ruling  of  the  court  on 
the  admission  of  evidence  in  the  case. 
The  cross-examination  of  Hayes  was 
very  long,  and  took  a  wide  range,  — 
much  wider  than  is  allowed  in  United 
States  courts  in  the  case  of  an  ordi- 
nary witness,  where  the  cross-exami- 
nation is  usually  confined  within  the 
scope  of  the  direct  examination. 
Johnston  v.  Jones  et  al.  1  Black,  216; 
Teese  et  al.  v.  Huntingdon  et  al.  23 
Howard,  2.  But  a  greater  latitude  is 
undoubtedly  allowable  in  the  cross- 
examination  of  a  party  who  places 
himself  on  the  stand  than  in  that  of 
other  witnesses.  Still,  where  the 
cross-examination  is  directed  to  mat- 
ters not  inquired  about  in  the  princi- 
pal examination,  its  course  and  extent 
is  very  largely  subject  to  the  control 
of  the  court  in  the  exercise  of  a  sound 
discretion  ;  and  the  exercise  of  that 
discretion  is  not  reviewable  on  a  writ 
of  error.  That  was  precisely  the  case 
here.  The  witness,  on  his  cross-exam- 
ination, having  stated  that  he  was 
worth  $45,000  at  a  period  some  four 
years  prior  to  the  purchase  of  the 
goods,  was  asked  how  he  had  acquired 
that  sum.  As  to  a  portion  of  it  he 
stated  that  he  had  advanced  money  to 
a  friend  to  buy  up  government  vouch- 


CHAP.  VIII.] 


WITNESSES  :    PARTIES. 


[§  482. 


Under  the  Pennsylvania  statute,  when  one  party  calls  another, 
the  party  calling  is  not  concluded  by  the  answers  of  the  party 
called.  It  has  been  held  under  that  statute  that  a  party  thus 
examined  may  be  impeached,  by  showing  that  he  made  contra- 
dictor}^ statements  out  of  court,  without  first  asking  him  as  to 
such  statements.^ 

§  482.  Ordinarily,  as  is  elsewhere  seen,  a  witness  cannot  be  ex- 
amined as  to  another  person's  motives.  It  is  otherwise  Maybeex- 
with  a  witness's  own  motives,  as  to  which  he  is  always  f"^i'"s^n^o- 
open  either  to  examination  or  cross-examination.  Hence  t'^'^^- 
a  party,  when  examined  as  a  witness,  may  be  asked  —  so  has  it 
been  held  in  Maine  and  Massachusetts  —  as  to  his  own  motives 
or  intentions,  when  these  are  material.^     In  New  York  we  have 


ers  on  speculation  upon  shares.  Be- 
ing asked  to  name  this  friend  he  de- 
clined, and  the  court  refused  to  com- 
pel him  to  disclose  it.  This  refusal 
was  excepted  to.  We  think  it  was 
entirely  in  the  discretion  of  the  court 
to  compel  an  answer  or  not.  It  was 
on  a  new  matter  first  introduced  on 
the  cross-examination.  If  a  court  did 
not  possess  discretionary  power  to 
control  such  a  course  of  examination, 
trials  might  be  rendered  intermina- 
hlc."  Bradley,  J.,  Rea  v.  Missouri, 
17  Wall.  542. 

^  "  Under  the  second  section  of  the 
Act  of  Assembly  of  April  15,  18G9, 
Pamph.  L.  30,  when  the  plaintiff  be- 
low was  called  to  the  stand  as  a  wit- 
ness by  the  defendants,  they  had  a 
right  to  examine  her  as  if  under  cross- 
examination  —  ))ut  to  her  leading  ques- 
tions—  and  draw  from  her  any  facts 
or  admissions  which  would  corrobo- 
rate their  own  case  or  weaken  hers. 
The  act  provides  that '  the  party  call- 
ing for  such  examination  shall  not  be 
concluded  thereby,  but  may  rebut  it 
by  counter  testimony.'  It  is  evident 
that  she  was  to  be  considered  in  all 
respects  as  if  originally  offered  and 
examined  as  a  witness  in  her  own  1)0- 
half.    We  think  it  clear,  then,  that  the 


questions  overruled  by  the  learned 
court,  and  which  form  the  subject  of 
the  first  three  assignments  of  error, 
were  entirely  proper.  The  answers 
woulil  either  have  corroborated  the 
testimony  of  Mrs.  Ilauck,  the  witness 
examined  by  the  defendants,  or  if  de- 
sired, Mr.  and  Mrs.  Spiehlman  could 
have  been  called  to  contradict  her. 
If  she  had  really  made  such  admis- 
sions, Mrs.  Taylor  would  have  had 
the  opportunity  of  explaining  how  she 
came  to  make  them.  To  this  she 
surely  had  no  right  to  object.  It  was 
not  the  case  of  contradicting  and  dis- 
crediting an  ordinary  witness  in  a  ma- 
terial point,  by  showing  inconsistent 
declarations  out  of  court,  when,  ac- 
cording to  the  well  settled  rule,  such 
(jueslions  are  in  general  necessary,  in 
order  to  give  the  witness  an  o])portu- 
nity  of  explaining  ;  but  as  Mrs.  Tay- 
lor was  the  party,  these  declarations 
were  evidence  in  themselves,  and  could 
be  ])roved  without  giving  such  oppor- 
tunity." Sharswood,  J.,  Brubacker 
V.  Taylor,  7G  Penn.  St.  86 

2  WhecMcn  r.  Wilson,  44  Me.  1; 
Quimby  r.  Morrill,  47  Me.  4  70;  Law- 
ton  V.  C'hasi',  108  Mass.  241;  Snow 
('.  Paine,  114  Mass.  520.  See  supra, 
§  35  ;  infra,  §§  508,  955;  and  Thacher 

459 


§  482.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


to  this  effect  a  series  of  rulings,^  viewing  this  question  in  various 
hghts.  Thus  a  plaintiff,  suing  on  a  note,  has  been  allowed  to 
testify,  in  response  to  a  defence  of  usury,  as  to  intent  in  respect 
to  such  usury  ;  ^  though  it  is  said  that  such  evidence  is  only 
admissible  to  explain  ambiguous  acts,  not  to  control  such  as  are 
unambiguous.^  An  assignor,  also,  has  been  allowed  to  testify  to 
his  good  faith  in  making  an  assignment.^  A  plaintiff  in  an 
action  of  deceit  has  been  permitted  to  testify  as  to  his  belief  in 
the  defendant's  representations.^  When  it  is  material  as  to 
whom  a  party  voted  for  at  an  election,  it  is  held  admissible  to 
ask  him  as  to  the  way  he  intended  to  vote.^  In  criminal  cases, 
there  can  be  no  doubt  that  a  defendant  is  competent  to  testify 
as  to  his  intent,  whenever  his  intent  is  material.''  In  civil  cases, 
however,  it  should  be  observed  that  the  right  of  a  party  to  tes- 
tify as  to  his  intent,  in  drawing  a  contract  or  other  document,  is 
limited  in  the  same  way  as  is  other  proof  of  intent ;  ^  in  other 


V.  Pliinney,  7  Allen,  148,  quoted  infra, 
§  508. 

1  See  Alb.  Law  J.,  Dec.  9,  1876, 
where  these  cases  are  elaborately  re- 
viewed. S.  P.,  Persse  v.  Willett,  1 
Robt.  N.  Y.  13. 

2  Thurston  v.  Cornell,  38  N.  Y.  281. 

3  Fiedler  v.  Darrin,  50  N.  Y.  43 7,  fol- 
lowed in  Black  i'.  Ryder,  5  Daly,  304. 

*  Seymour  v.  Wilson,  14  N.  Y.  567, 
overruling  Hanford  v.  Artcher,  1  Hill, 
347  ;  followed  by  Bedell  v.  Chase,  34 
N.  Y.  386 ;  and  so,  also,  Forbes  v. 
Waller,  25  N.  Y.  430;  Mathews  v. 
Poultney,  33  Barb.  127. 

"  The  court  of  appeals  have  over- 
ruled the  exclusion  of  the  testimony 
of  the  defendant,  in  a  suit  for  mali- 
cious prosecution,  that  he  believed  the 
testimony  of  the  plaintiff  (prosecuted 
for  perjury)  was  material,  and  that 
when  he  made  the  charge  he  believed 
the  plaintiff  was  guilty.  McKown  v. 
Hunter,  30  N.  Y.  625.  See,  also, 
Tallman  v.  Kearney,  3  Thompson  & 
Cook,  412,  and  Goodman  v.  Stroheim, 
4  Jones  &  Spencer,  216.  But  in  a 
subsequent  case  in  the  fourth  depart- 

460 


ment  (Lawyer  v.  Loomis,  3  Thompson 
&  Cook,  393),  the  exclusion  of  the  re- 
ply of  the  defendant,  a  witness,  to  the 
question  whether  he  had  acted  with- 
out malice,  was  held  proper,  on  the 
ground  that  proof  of  lack  of  malice  did 
not  show  probable  cause,  and  was  im- 
material where  want  of  probable  cause 
was  shown,  as  had  been  done  in  the 
case  then  at  bar.  Fiedler  v.  Darrin 
(above)  is  relied  upon  as  authority  for 
sustaining  the  exclusion  of  the  evi- 
dence."    Alb.  Law  J.,  ut  supra. 

On  the  other  hand,  in  Waugh  v. 
Fielding,  48  N.  Y.  681,  where  the  ac- 
tion was  for  a  balance  alleged  to  be 
due  on  a  sale,  and  the  defence  was 
fraud,  the  plaintiff,  as  a  witness  at  the 
trial,  was  asked,  '  Did  you  give  or  in- 
tend to  give  the  defendants  anything 
more  than  your  opinion  in  regard  to  ' 
the  condition  of  the  chattel  sold  ?  The 
admission  of  the  question  was  held 
error. 

^  Thorn  v.  Helmer,  2  Keyes,  27. 

6  People  V.  Pease,  27  N.  Y.  45. 

">  See  Wharton  on  Hom.  §  520. 

8  See  infra,  §  955. 


CHAP.  VIII.] 


WITNESSES:   PARTIES. 


[§  483. 


words,  a  party  cannot  be  admitted  to  prove  his  intent  so  as  to 
vary  the  terms  of  a  document  by  which  he  is  bound.^  As  to 
domicil,  a  party  may  in  all  cases  be  examined  in  reference  to  his 
intent,  as  the  animus  manendi  is  always  material  when  domicil 
is  to  be  determined.^ 

§  483.  If  a  party  offers  himself  as  a  witness   to   disprove   a 
criminal  charge,  can  he  excuse  himself  from  answering   jj^  cannot 
on  the  ground  that  by  so  doing   he  would   criminate    '^^"'^i  ""^'e- 

1  •  ,„  o  •  •  •  •  vant  ques- 

himself  ?     This  question  has  been  much  agitated  since    tions  on 
the  passing  of  the  enabling  statutes ;  and  the  general    that  the 
conclusion  is,  that  so  far  as  concerns  questions  touching   ^vouj^'^ 
the  merits,  the  defendant,  by  making  himself  a  witness    criminate. 
as  to  an  offence,  waives  his  privileges  to  all  matters  connected 
with  the  oft'ence.3    It  has  been  ruled,  also,  that  to  affect  his  cred- 
ibility, he  may  be  asked  whether  he  has  been  in  prison  on  other 
charges,^  and  whether   he  has  suborned   testimony  in  the  par- 
ticular case ;  ^  though  where  there  is  no  statute  permitting  such 

^  Dillon  y.  Anderson,  43  N.Y.  231;  introduced     circumstantial     evidence 

Harrison  v.  Kirke,  38  N.  Y.  Sup.  Ct.  tending  to  show  that  he  was,  and  had 

(6  Jones  &  S.  39G).  proved  acts  by  him  in  furtherance  of 

"  It  has  also  been  held  not  to  be  the  partnership.  His  evidence  there- 
competent  for  a  contractor,  a  witness,  upon,  to  the  effect  that  the  acts  proved 
to  reply  to  the  question,  '  Who  did  were  done  by  him  for  the  purpose 
you  suppose  you  were  making  the  merely  of  assisting  the  other  defend- 
contract  with?'  Denman  v.  Camp-  ants,  who  were  his  relatives,  was  held 
bell,  7  Hun,  88  ;  nor  '  To  whom  did  to  have  been  improperly  excluded, 
you  look  for  performance  of  the  con-  ^  Fisk  v.  Chester,  8  Gray,  506.  See 
tract?  '  Kellar  v.  Richardson,  5  Hun,  Whart.  Confl.  of  L.  §  62. 
352;  nor  even  'For  whom  did  you  ^  State  r.  Ober,  52  N.  H.  459;  Com. 
set  up  that  machinery,  as  you  sup-  v.  Lannan,  13  Allen,  563;  Com.  v. 
posed?'  Nichols  r.  The  Kingdom  Mullen,  97  Mass.  545;  Com.  u.  Curtis, 
Iron  Ore  Company,  56  N.Y.  618.  But  97  Mass.  574;  Com.  t-.  Morgan,  107 
in  an  action  on  a  promissory  note,  the  Mass.  199;  Com.  v.  Nichols,  1 14  Mass. 
plaintiff  was  allowed  to  testify  in  re-  285;  Burdick  v.  People,  58  Barb.  51; 
sponse  to  the  question,  'Were  the  Fralich  v.  People,  65  Barb.  48;  Mc- 
supplies  [proved  to  have  been  sold  Garry  v.  People,  2  Lansing,  227; 
by  him]  furnished  on  the  note  or  Brandon  v.  People,  42  N.  Y.  265; 
not?'  Lewis  v.  Rogers,  34  N.  Y.  Connors  t;.  People,  50  N.  Y.  240; 
Super.  Ct.  (2  Jones  &  Spencer)  64."  Barber  i-.  State,  13  Fla.  675.  See, 
Albany  Law  J.,  ut  supra.  however.    People    v.    MoGungill,    41 

In  Tracy   v.   McManus,  58    N.  Y.  Cal.  429. 


257,  upon  the  issue  whether  the  de- 
fendant testifying  was  a  partner  with 
other   defendants,    the    plaintiffs  had 


*  Com.  I'.  Bonner,  97  Mass.  587. 
^  Martineau  r.  May,  18  Wise.  54. 

4G1 


§  483.] 


THE   LAW    OF   EVIDENCE. 


[book  II. 


inquiries,  and  where  the  evidence  does  not  go  to  motive  or  bias, 
answers  as  to  colhiteral  crimes  sliould  not  be  coerced.^ 

Questions  as  to  adultery,  when  this  is  at  issue,  are  to  be 
treated  as  are  questions  as  to  any  other  crime.  But  in  divorce 
cases,  as  we  have  ah'eady  seen,  the  evidence  of  parties  is  to  be 
closely  scanned,^  and  admissions  of  parties  in  such  cases,  or  even 
the  testimony  of  parties,  as  to  adultery,  are  not,  unless  corrob- 
orated, usually  sufficient  to  sustain  a  divorce.^ 


1  People  V.  Thomas,  9  Mich.  321; 
Gale  V.  People,  26  Mich.  157.  See, 
however,  State  v.  Ober,  52  N.  H.  459; 
Clark  V.  Reese,  35  Cal.  89.  French 
V.  Venneman,  14  Ind  282.  See  infra, 
§  533. 

In  a  remarkable  case  in  England, 
in  which  Cardinal  Wiseman  was  pros- 
ecuted for  libel,  the  plaintiff,  having 
failed  in  his  attempts  to  prove  the  fact 
of  publication,  as  a  last  resource  pro- 
posed to  examine  the  defendant  him- 
self. The  cardinal,  through  his  coun- 
sel, declined  to  be  sworn,  urging  that, 
on  the  simple  issue  of  "  guilty  or  not 
guilty,"  no  question  could  legally  be 
put  to  him,  the  answer  to  which  would 
not  fall  within  the  rule  of  protection, 
and  it  was  alike  useless  and  vexatious 
to  swear  a  man,  when  no  evidence 
pertinent  to  the  issue  could  be  ex- 
tracted from  him.  On  the  other  hand, 
it  was  urged  with  much  force,  that  the 
objection  had  been  taken  too  soon; 
that  the  plaintiff  had  a  clear  right  to 
call  his  opponent  as  a  witness,  to  cause 
an  oath  to  be  administered  to  him,  and 
to  ask  him  whatever  questions  he  liked 
which  were  relevant  to  the  issue ;  and 
that  it  was  not  until  after  the  defend- 
ant had  been  sworn,  and  the  questions 
had  been  put  to  him,  that  he  was  le- 
gally entitled  to  claim  his  protection. 
The  learned  judge  erroneously  ruled 
that  the  cardinal  need  not  be  sworn, 
but  the  only  result  of  this  ruling  was, 
that  the  parties  were  put  to  the  an- 
noyance and  expense  of  a  new  trial, 

462 


which  in  due  course  was  granted  by 
the  exchequer.  Boyle  v.  Wiseman, 
10  Ex.  R.  647.  The  new  trial  was 
granted  on  the  26th  January,  1855, 
and  £1000  damages  were  ultimately 
awarded.     Taylor's  Evidence,  §  1270. 

In  another  case  involving  the  same 
principle,  an  action  of  trover  brought 
against  the  London  Dock  Company 
for  certain  pipes  of  wine,  the  de- 
fendants alleged  that  the  plaintiff  had 
deposited  with  them  "  sour  wine," 
the  produce  of  "  rummage  sales,"  and 
that  afterwards,  by  some  means  which 
were  not  miraculous  but  fraudulent, 
the  wine  had  been  converted  into 
"sound  port."  The  theory  was,  that 
sour  wine  had  been  recently  abstracted, 
and  empty  pipes  had  been  refilled  by 
tapping  the  other  stores  in  the  dock. 
To  assist  the  defendants  in  establish- 
ing this  case,  they  applied  to  the  court 
for  leave  to  deliver  interrogatories  to 
the  plaintiff  under  §  51  of  Common 
Law  Procedure  Act,  1854  (Osborn  v. 
London  Dock  Co.  10  Ex.  R.  698  ;  but 
see  Tupling  v.  Ward,  6  H.  &  N.  749; 
30  L.  J.  Ex.  222,  S.  C.) ;  and  the 
court,  after  the  argument,  granted  the 
application,  although  it  was  strenu- 
ously argued  on  behalf  of  the  plain- 
tiff, that  as  the  sole  object  of  the  ques- 
tions was  to  fix  him  with  a  guilty 
participation  in  the  fraud,  he  had 
clearly  a  right  to  refuse  to  answer 
them.     Taylor's  Evidence,  §  1270, 

2  See  supra,  §  433. 

8  Infra,  §  1220.     The  exception  in 


CHAP.  VIII.]  WITNESSES :    PARTIES.  [§  484. 

§  484.  A  party  may  be  contradicted  as  to  matters  material  to 


the  English  statutes,  in  reference  to 
adultery,  are  thus  commented  on  by 
Mr.  Taylor  (Evidence,  §  1221)  :  — 

"  When  the  evidence  acts  of  1851 
and  1853  were  respectively  before  par- 
liament, it  was  not  surprising  that  the 
legislature  determined  to  exclude  from 
their  operation  the  parties  to  any  pro- 
ceeding instituted  in  consequence  of 
adultery,  and  the  husbands  and  wives 
of  such  parties.  Obvious  reasons 
would  occur  to  any  man  why  defend- 
ants in  these  suits  should  not  be  ex- 
posed to  the  almost  irrei^istible  temp- 
tation of  committing  perjury  ;  *  and 
their  exclusion  from  the  witness  box 
seemed  at  that  time  to  aiford  the  only 
safe  mode  of  avoiding  such  a  result. 
In  the  year  1857,  however,  when  the 
law  of  divorce  was  amended,  doubts 
were  caused  by  the  obscure  language 
of  the  amending  statute  (see  and  com- 
pare 20  &  21  Vict.  c.  85,  §§  41,  43, 
46,  and  48),  as  to  how  far  the  old 
doctrines  of  the  common  law,  in  rela- 
tion to  the  competency  of  witnesses, 
were  to  be  recognized  in  the  new  di- 
vorce court.  These  doubts  gave  rise 
to  fresh  legislation,  which  in  its  turn 
gave  rise  to  fresh  doubts  and  difficul- 
ties. 

"  At  length  Mr.  George  Denman 
carried  through  parliament  a  measure 


*  See  on  this  subject  the  powerful  obser- 
vations of  Lord  Deiimau  (then  Mr.  Den- 
man), in  Queen  Caroline's  trial:  "  We  have 
been  told,"  said  he,  "that  Berganii  might 
be  produced  as  a  witness  in  our  exculpation, 
but  we  know  tliis  to  be  a  fiction  of  lawyers, 
wliich  common  sense  and  natural  feeling 
would  reject.  The  very  call  is  one  of  the 
unparalleled  circumstances  of  this  extraor- 
dinary case.  From  the  beginning  of  the 
world  no  instance  is  to  be  found  of  a  man 
accused  of  adultery  being  called  as  a  wit- 
ness to  disprove How  shame- 
ful an  inquisition  would  the  contrary,  prac- 
tice engender!     Great  as  is  the  obligation 


(32  and  33  Vict.  c.  68),  which  is  sup- 
posed by  many  lawyers  to  have  made 
the  law  what  it  ought  to  be.  After 
repealing  the  fourth  section  of  the  Act 
of  1851,  and  so  much  of  the  second 
section  of  the  Act  of  1853,  '  as  is 
contained  in  the  words  "or  in  any 
proceeding  instituted  in  consequence 
of  adultery,"  '  it  proceeds  to  enact, 
in  §  3,  as  follows :  '  The  parties  to 
any  proceeding  instituted  in  conse- 
quence of  adultery,  and  the  husbands 
and  wives  of  such  parties,  shall  be 
competent  to  give  evidence  in  such 
proceeding  :  provided,  that  no  wit- 
ness in  any  proceeding,  whether  a 
party  to  the  suit  or  not,  shall  be 
liable  to  be  asked  or  bound  to  an- 
swer any  question  tending  to  show 
that  he  or  she  has  been  guilty  of  adul- 
tery, unless  such  witness  shall  have 
already  given  evidence  in  the  same 
proceeding  in  disproof  of  his  or  her 
alleged  adultery.'  The  language  used 
in  this  proviso,  though  not  free  from 
ambiguity,  does  not  render  inadmissi- 
ble the  evidence  of  a  witness  that  he 
or  she  has  committed  adultery,  but  it 
simply  protects  the  witness  from  be- 
ing questioned  on  the  subject,  in  the 
event  of  the  protection  being  claimed. 
Hebblethwaite  v.  Ilebblethwaite,  3 'J  L. 
J.  Pr.  &  Mat.  15  ;  2  Law    Ilep.   P.  & 


to  veracity,  the  circumstances  might  raise 
a  doubt  in  the  most  conscientious  mind 
whether  it  ought  to  prevail.  Mere  casuists 
might  dispute  with  plausible  arguments  on 
either  side,  but  the  natural  feelings  of  man- 
kind would  be  likely  to  triumph  over  their 
moral  doctrines.  Supposing  the  existence. 
of  guilt,  pLMJury  itself  would  be  thought  ve- 
nial in  comparison  with  the  exposure  of  a 
confiding  woman.  It  follows  that  no  such 
question  ought  in  any  case  to  be  adminis- 
tered, nor  such  temptation  given  to  tamper 
with  the  sanctity  of  oaths."  Quoted  in  1 
Ld.  Brougham's  Speech,  248.  Aud^see  in- 
fra, §  1220. 

4G3 


§  487.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


the  issue ;  ^  but  not  as  to  matters  collateral.^     So,  as  we  have 
He  may  be   ^eeii,  he  may  be  contradicted  by  proof  of  prior  inconsist- 


contradict- 
ed  on  ma- 
terial 

points  and 
maj'  be 
impeached. 


ent  statements,""  and  this  without  previously  question- 
ing him  as  to  such  statements.*  He  is  not  protected, 
so  far  as  concerns  contradiction,  by  the  rules  applicable 
to  witnesses  in  general.  He  may  be  contradicted  by  the 
party  calling  him  ;  and  he  is  open  to  a  free'examination  from 
both  sides.^  So,  also,  his  character  for  truth  and  veracity  may 
be  impeached.^ 

§  485.  A  fortiori,  a  party  who  has  been  examined  in  his  own 

behalf,  may  be  reexamined  in  rebuttal  of  the  defend- 

reL^m-       aut's  testimony,'^  and  may  be  called  to  contradict,  un- 

'"^*^'  der  the  usual  limitations,  testimony  offered  on  his  own 

side,^  or  to  explain  ambiguities  in  his  own  testimony.^ 

§  486.  So  far  as  concerns  criminal  issues,  the  discussion  of  this 
Presump-  topic  is  remanded  to  another  work.^*^  In  civil  issues, 
be  drawn  the  question  cannot  arise  in  those  states  in  which  one 
r^foiMioT'^'  P^^"ty  ^^^  compel  the  attendance  of  the  other  party  as 
testifying.  ^  witness.  The  refusal  of  the  party,  under  any  cir- 
cumstances, to  testify  as  to  any  facts  with  Avhich  he  is  familiar, 
must  lead  to  the  presumption  which  ordinarily  holds  against  a 
party  who  withholds  explanatory  evidence  in  his  power.^^ 

§  487.  If  we  are  to  be  governed  by  equity  analogies,  it  is  not 
Two  wit-      necessary,  when  a  defendant  is  called  as  a  witness,  that 

nesses  not         ,  ,  "^ 

necessary      his  testimony  denying  the  opposing  case  should  be  over- 


D.  29,  S.  C. ;  Babbage  v.  Babbage,  2 
Law  Rep.  P.  &  D.  222.  No  one  but 
the  witness  has  any  right  to  interfere. 
Hebblethwaite  v.  Hebblethwaite,  39 
L.  J.  Pr.  &  Mat.  15  ;  2  Law  Rep.  P. 
&  D.  29,  S.  C. 

1  Fralich  v.  People,  65  Barb.  48; 
State  V.  Home,  9  Kans.  119.  Infra, 
§§  480-1. 

•     2  Marx  V.    People,  63    Barb.  618. 
See  infra,  §  559. 

3  Supra,  §§  480,  481,  482;  infra, 
§  551 ;  Brubacker  v.  Taylor,  76  Penn. 
St.  83. 

*  See  infra,  §  555;  Kreiter  v.  Bom- 
berger,  2  Weekly  Notes  of  Cases,  685. 

*  See  supra,  §  480;  Foster,  in  re, 

464 


44  Vt.  570;  Laramore  v.  Minish,  43 
Ga.  282. 

6  Allis  V.  Leonard,  58  N.  Y.  288. 
Infra,  §  562. 

■^  Donohue  v.  People,  56  N.  Y.  208; 
Rust  V.  Shackleford,  47  Ga.  538. 

8  Hildreth  v.  Shepard,  65  Barb. 
265.     See  infra,  §  572. 

^  Cousins  V.  Jackson,  52  Ala.  262. 

10  Whart.  Cr.  Law  (7th  ed.),  § 
782  c. 

"  Perkins  v.  Hitchcock,  49  Me. 
468;  Whitney  v.  Bayley,  4  Allen, 
173  ;  Andrews  v.  Frye,  104  Mass. 
234.  See,  however,  as  qualifying 
above,  Lowe  v.  Massey,  62  111.  47  ; 
and  see  infra,  §  1266. 


CHAP.  VIII.] 


WITNESSES  :    PARTIES. 


[§  487. 


come  by  two  witnesses.     Such  testimony  may  be  over-    to  over- 
come by  one  witness  alone,  with  corroborative  circum-   ty's'te^t^" 
stances  sustaining  such  witness.^     Facts,  indeed,  when   """"J'- 
properly  reproduced,  may  be  always  regarded  as  at  least  equiva- 
lent to  any  other  form  of  proof  ;  and  peculiarly  is  this  the  case 
with  deliberate  writings  of  a  party .^     It  should  be  remembered, 
however,  that  in  courts  of  equity,  where  the  defendant  (replica- 
tion having  been  filed)  "  positively,  clearly,  and  precisely  "  denies 
by  his  answer  any  matter  alleged  in  the  bill,  the  denial  must  be 
countervailed  by  sufficient  evidence  of  two  witnesses,  or  of  one 
witness  and  of  circumstances,  which  is  as  good  as  two  witnesses  : 
otherwise  the  court  will  make  no  decree  against  the  defendant.^ 


^  See  supra,  §  414;  Holdernesse  v. 
Rankin,  2  De  G.,  F.  &  F.  272;  Smith 
V.  Constant,  20  L.  J.  Ex.  55;  Jordan 
V.  Money,  5  H.  of  L.  Cas.  185;  Smith 
V.  Kay,  7  H.  of  L.  Cas.  750;  Gray  v. 
Haii;,  20  Beav.  219;  Smith  v.  Con- 
stant, 20  L.  J.  Ch.  128;  Sharry  v. 
Garty,  2  Ir.  Eq.  (N.  S.)  358;  Bent  v. 
Smith,  22  N.  J.  Eq.  560;  Clark  v. 
Van  Riemsdyk,  9  Cranch,  160;  Car- 
penter t;.  Ins.  Co.  4  How.  185;  Towne 
V.  Smith,  1  Woodb.  &  M.  118;  Zeig- 
ler  J'.  Scott,  10  Ga.  389;  Jones  v. 
McLuskey,  10  Ala.  27;  Latham  v. 
Staples,  46  Ala.  462;  Conrcy  v.  Har- 
rison, 4  La.  An.  349  ;  Fletcher  v. 
Fletcher,  5  La.  An.  406  ;  Enders  v. 
Williams,  1  Mete.  (Ky.)  346  ;  Proctor 
V.  Terrill,  8  B.  Monr.  451. 

2  Keys  V.  Williams,  3  Y.  &  C.  Ex. 
R.  55;  Savage  v.  Brocksopp,  18  Ves. 
335;  2  Story  Eq.  §  1528;  Pember  v. 
Mathers,  1  Br.  Ch.  R.  52;  Clark  v. 
Van  Riemsdyk,  9  Cranch,  160. 

8  Pi-r  Kindersley,  V.  C,  Williams 
V.  Williams,  12  W.  R.  663;  East  Ind. 
Co.  V.  Donald,  9  Ves.  282;  Gresley's 
Ev.  4  ;  Cooke  v.  Clay  worth,  18  Ves. 
12;  Money  v.  Jordcn,  2  De  Gex,  M. 
&  G.  336  ;  Smith  v.  Kay,  7  H.  of  L. 
Cas.  750;  Anderson  v.  Collins,  6  Ala. 
783;  Hynson  t;.  Texada,  19  La.  An. 
470. 

VOL.  I.  30 


As  to  the  application  of  this  rule 
at  common  law,  see  Ballentine  v. 
White,  77  Penn.  St.  20. 

That  the  rule  does  not  operate  in 
N.  Y.  practice,  see  Stilwell  v.  Car- 
penter, 62  N.  Y.  639. 

In  Pennsylvania,  in  Sower  v.  Wea- 
ver, 78  Penn.  St.  443,  decided  by  the 
supreme  court  in  May,  1875,  it  was 
held  that  in  equitable  cases  the  court 
would  hold  to  the  equity  rule. 

"  A  chancellor,"  said  Sharswood, 
J.,  "  must  look  at  the  whole  evidence, 
and  in  this  case  the  uncontradicted 
fact  that,  during  Weaver's  possession, 
Sower  sold  and  conveyed  a  part  of 
the  land,  with  Weaver's  knowledge 
and  assent,  for  a  school-house,  would, 
of  itself,  contradict  the  inference  of  a 

parol  gift But  how  stands  the 

case  since  the  Act  of  1869,  and  sup- 
posing that  the  testimony  of  Weaver 
and  his  wife  made  out  the  gift  ?  The 
defence  was  a  purely  cijuitable  one. 
Hail  the  defendant  gone  into  a  court 
of  equity  for  a  specific  performance, 
or  for  an  injunction  to  restrain  the 
plaintiff  from  pursuing  his  legal  title 
to  turn  him  out  of  possession,  the  de- 
nial of  the  plaintiir,  on  oath,  of  the 
equity  of  the  bill  would  have  com- 
pelled the  complainant  in  the  bill  to 
sustain  it  by  two  witnesses,  or   what 

465 


§  488.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


In  divorce  cases,  a  party's  uncorroborated  testimony  will  not  be 

sufficient  to  sustain  a  judgment  in  a  case  where  corroboration 

is  practicable.^ 

§  488.  A  party's  statements,  when  under  examination  on  the 
witness  stand,  are  not  entitled  to  the  force  of  judicial 
confessions,  for  they  are  not  made  animo  confitendi,  and 
they  are  sometimes  uttered  precipitately  and  inconsid- 
erately, in  confusion,  or  for  the  purpose  of  avoiding  a 

temporary  difficulty,  rather  than  of  making  a  solemn  judicial 


Part}' 
bound  by 
his  own 
admissions 
on  the 
Stand. 


would  be  equivalent  thereto.  Here, 
George  Sower,  under  oath,  fairly  and 
squarely  denied  all  the  equity  which 
Weaver  set  up.  Admitting  Weaver 
and  his  wife  to  amount,  together,  to 
one  sufficient  witness,  where  is  the 
remaining  witness,  or  that  which  is 
equivalent  thereto?  It  is  not  to  be 
found  in  the  case.  It  is  clear  that 
this  well  established  rule  of  equity 
must  be  applied  in  cases  of  this  char- 
acter, or  the  rule  must  be  abolished 
on  the  equity  side  of  the  court.  As 
long  as  equitable  ejectments  may  be 
maintained,  and  equitable  defences  set 
up  at  law,  to  legal  titles,  we  must  see 
to  it  that  the  same  rule  and  measure 
of  justice  be  applied,  whether  the  pro- 
ceeding be  at  law  or  in  equity.  We 
adopted  and  announced  this  principle 
in  the  opinion  in  the  Dollar  Savings 
Bank  v.  Bennett,  decided  at  Pitts- 
burg, Nov.  1874,  and  it  is  our  purpose 
to  adhere  to  it." 

In  Jan.  1876,  however  (Prowattain 
V.  Tindall,  2  Weekly  Notes,  265),  it 
was  ruled  that,  since  the  Act  of  1869, 
permitting  parties  to  testify,  the  tes- 
timony of  a  defendant  on  his  own  be- 
half in  an  action  of  covenant  is  suf- 
ficient, although  uncorroborated,  to 
maintain  an  equitable  defence,  —  its 
credibility  only  being  a  question  for 
the  jury  as  in  other  cases.  In  this 
case  the  proof  was  that  A.  sold  to  B. 
a  lot  of  ground,  which  was  subject  to 
a  ground-rent,  the  deed  containing  a 

466 


covenant  that  A.  would  pay  it  off.  In 
an  action  by  B.  against  A.  for  breach 
of  this  covenant,  the  defence  was  set 
up  that,  before  delivery  of  the  deed, 
B.  promised,  verbally,  to  pay  off  the 
ground-rent  himself,  whereby  the  de- 
fendant (A.)  was  induced  to  deliver 
the  deed.  There  being  no  evidence 
of  the  alleged  parol  agreement,  other 
than  the  defendant's  own  statement, 
the  court  below  instructed  the  jury 
that  the  evidence  of  the  defendant 
was  to  be  disregarded,  because  not 
corroborated.  It  was  held  in  the  su- 
preme court  that  such  instruction  was 
erroneous,  in  that  it  deprived  the  de- 
fendant of  the  benefit  of  his  own  tes- 
timony, to  which  he  was  entitled  un- 
der the  Act  of  15th  April,  1869. 

"  This  instruction,"  said  Gordon, 
J.,  "  was  erroneous.  It  annulled  the 
Act  of  1869,  in  that  it  deprived  the 
defendant  of  the  benefit  of  his  own 
testimony.  That  act  does  not  require 
that  the  evidence  of  the  party  in  in- 
terest, though  the  only  evidence  on 
his  side  of  the  case  trying,  should  be 
corroborated  in  order  to  make  it  ef- 
fective. Such  testimony,  just  as  any 
other,  must  be  submitted  to  the  jury, 
and  it  is  for  that  body  to  say  how  far 
the  interest  of  the  witness  giving  it 
shall  affect  its  credibility.  The  jury 
may  discard  it  as  unworthy  of  belief, 
but  the  court  may  not  do  so." 

1  Supra,  §433;  infra,  §  1220. 


CHAP.  VIII.]  WITNESSES :    PARTIES.  [§  489, 

statement.  They  do  not,  therefore,  estop,  as  may  sometimes  a 
judicial  admission  ;  but  they  are  nevertheless  entitled  to  high 
consideration,  and  cannot,  without  proof  of  surprise,  be  contra- 
dicted by  the  party  making  them  in  the  same  cause.  "  Obvi- 
ously," says  a  learned  judge  in  Michigan,  speaking  of  a  case  of 
this  class,  "  the  case  is  to  be  regarded  in  a  light  somewhat  differ- 
ent from  what  it  should  have  been,  had  the  evidence  which  the 
plaintiff  gave,  been  given  by  other  witnesses.  In  the  latter  case 
the  evidence  of  facts,  precluding  recovery,  would  be  addressed 
to  a  jury  who  might  not  give  them  full  credence,  or  who  might 
suppose  them  qualified  by  other  evidence  considerably  modifying 
their  legal  effect.  But  the  plaintiff  who  states  his  own  case  on 
the  witness  stand,  and  states  himself  out  of  court,  cannot  well 
ask  the  jury  to  disbelieve  or  disregard  that  which  tells  against 
him.  If  he  unequivocally  states  facts  which  establish  a  defence, 
and  there  is  no  attempt  at  a  qualifying  explanation  by  other 
witnesses,  he  has  no  ground  of  complaint  if  the  court  charges  the 
jury  that  no  recovery  is  justifiable."^ 

§  489.  The  effect  of  the  statutes  is  not  simply  to  enable  the 
parties  to  testify  in  their  own  behalf  as  witnesses.  The  Under  stat- 
removal  of  their  incapacity  is  total ;  and  not  only  may  pa^v  may 
they  be  called  as  witnesses  in  their   own  behalf,  but   ^"A"  "'® 

•^  '  otlier  as 

they  may  be  compelled  to  answer  as  witnesses  for  their  witness, 
opponents.^  The  parties  thus  called  are  examined  under  the 
same  limitations,  have  the  same  protection,  and  are  open  to  the 
same  contradiction  and  impeachment,  as  are  ordinary  witnesses.^ 
By  calling  a  party  as  a  witness,  all  objections  to  his  competency 
are  waived.'*     He  may  be  cross-examined  by  his  own  counsel.^ 

^  Cooley,  J.,  Davis  v.  Detroit  R.  R.  self  competent  to  testify,  and  our  stat- 

Co.  20  Mich.  128.     Supra,  §  4G1.  ute  (Wagn.  Stat.  1373,  §  3)  declares 

2  Texas  v.   Chiles,   21    Wall.   488  ;  that  '  any  party  to  any  civil  action  or 

Olive  V.  Adams,  50  Ala.  373.  proceeding  may  compel   any  adverse 

8  French  v.  Venneman,  14  Ind.  282;  party,  or  any  person  for  whose  immc- 

Dwinelle  v.  Ilenriquez,    1    Cal.    387;  diate  and  adverse  benefit  such  action 

Drake  v.  Eakin,  10   Cal.  312;  Shep-  or  proceeding  is  instituted, prosecuted, 

herd  v.  Payson,  16  La.  An.  3G0.    That  or  defended,  to  testify  as  a  witness  in 

leading  questions  to  such  a  witness  can  his  behalf,  in  the   same   manner,  and 

be  put,  see  infra,  §  499.  subject  to   the   same   rules,   as   other 

*  Turner  i;.  Mcllhaney,  8  Cal.  575.  witnesses,  provided   that  the  party  so 

'  Teel  V.  Byrne,  24  N.  J.  L.  G31.  called  to  testify  may  be  examined  by 

"  Upon  this  point  Hatcher  was  him-  the  opposite  partv,  under  the  rules  ap- 

467 


§  490.] 


THE   LAW   OF  EVIDENCE. 


[book  n. 


§  490.  Under  the  statutes  authorizing  one  party  to  examine 
another,  before  trial,  on  interrogatories,  the  answers 
of  a  party,  so  taken,  are  not  evidence,  unless  made  so 
by  the  party  by  whom  the  interrogatories  are  put.^ 
In  taking  and  using  such  evidence,  the  equity  prac- 
tice, as  applied  to  bills  of  discovery,  will  be  adopted, 
so  far  as  is  practicable.^  The  court,  on  a  failure  to  answer,  may 
compel  an  answer  by  attachment,  or  continue  the  case  until  full 
answers  are  made.^  An  evasive  and  frivolous  answer  may  be 
treated  as  a  confession.* 


Where 
party  is 
examined 
on  inter- 
rogatories, 
equity 
practice  is 
lollowed. 


plicable  to  the  cross-examination  of 
witnesses.'  The  seventh  section  de- 
clares that  '  if  any  party,  on  being 
duly  summoned,  refuse  to  attend  and 
testify,  either  in  court  or  before  any 
person  authorized  to  take  his  deposi- 
tion, besides  being  punished  himself 
as  for  a  contempt,  his  petition,  answer, 
or  reply  may  be  rejected,  or  a  motion, 
if  made  by  himself,  overruled,  or  if 
made  by  the  adverse  party,  sus- 
tained.' 

"  These  provisions  of  our  statute, 
which  have  been  there  since  the  re- 
vision of  1835,  were  probably  designed 
as  a  substitute  for  the  ancient  chan- 
cery practice  in  regard  to  interroga- 
tories appended  to  a  bill,  and  had  the 
same  object  in  view,  which  was  to  give 
a  party  an  opportunity  to  sift  the  con- 
science of  his  adversary.  If  the  in- 
terrogatories were  unheeded,  the  court 
of  chancery  regarded  the  party  refus- 
ing to  answer  as  in  contempt ;  and  our 
statute,  on  the  failure  of  the  parties 
summoned  to  appear  and  submit  to 
examination  as  a  witness,  authorizes 
the  court  to  reject  his  petition  or  an- 
swer or  reply.  It  will  be  observed 
that  the  answer  of  Hatcher  is  not 
sworn  to,  nor  was  it  necessary  under 
our  practice  that  it  should  have  been." 
Eck  V.  Hatcher,  58  Mo.  239,  Napton, 
J. 

1  Wells  V.  Bransford,  28  Ala.  200. 

2  Wilson  V.  Webber,  2  Gray,  558; 

468 


Richards  v.  Judd,  15  Abb.  (N.  Y.) 
Pr.  N.  S.  184;  Barnard  v.  Flinn,  8 
Ind.  204;  Draggoo  i'.  Draggoo,  10  Ind. 
95  ;  Everly  v.  Cole,  3  G.  Greene,  239  ; 
Jones  V.  Berryhill,  25  Iowa,  289  ;  Blos- 
som V.  Ludington,  32  Wise.  212;  Zeig- 
ler  V.  Scott,  10  Ga.  389  ;  Thornton 
V.  Adkins,  19  Ga.  464;  Roberts  v. 
Keaton,  21  Ga.  180  ;  Dyson  v.  Beckam, 
35  Ga.  132;  Pritchett  v.  Munroe,  22 
Ala.  501 ;  Weaver  v.  Alabama  Co. 
35  Ala.  176;  Burnett  v.  Garnett,  18 
B.  Mon.  68  ;  Haynes  v.  Heard,  3  La. 
An.  648  ;  Taylor  v.  Paterson,  9  La. 
An.  251  ;  Nicholson  v.  Sherard,  10 
La.  An.  533  ;  McMillan  v.  Croft,  2 
Tex.  397;  Beal  v.  Alexander,  6  Tex. 
531  ;  Gill  V.  Campbell,  24  Tex.  405. 
See  Winston  v.  English,  35  N.  Y. 
Sup.  Ct.  512;  Di'ennen  v.  Lindsey, 
15  Ark.  359;  Adkins  v.  Hershy,  17 
Ark.  425. 

3  McLendon,  ex  parte,  33  Ala. 
276. 

*  Whiting  V.  Ivey,  3  La.  An.  649 
Prater  v.  Pritchard,  6  La.  An.  730 
Knox  V.  Thompson,  12  La.  An.  114 
Walker  v.  Wingfield,  16  La.  An.  300 
Meyer  v.  Claus,  15  Tex.  516.  See 
Amherst  R.  R.  v.  Watson,  8  Gray, 
529. 

The  English  Common  Law  Proced- 
ure Act  of  1854  (17  &  18  Vict.  c.  125) 
enacts,  in  §  51,  that  "  In  all  causes  in 
any  of  the  superior  courts,  by  order 
of  the  court  or  a  judge,  the  plaintiff 


CHAP,  vm.] 


WITNESSES  :   EXAMNATION. 


[§  -iQi- 


VIII.  EXAMINATION  OF  WITNESSES. 


§  491.  Whenever  sufficient  ground  is  laid  for  the  application, 
the  judge  may  at  his  discretion  order  such  a  separation   judge  may 
of  witnesses  as  may  prevent  those   not  yet  examined   arat^iorof 
from   hearing   the   testimony    of   the    witness    on    the   witnesses. 


may,  with  the  declaration,  and  the 
defendant  may,  with  the  plea,  or  either 
of  them  by  leave  of  the  court  or  a 
judge  may,  at  any  other  time,  deliver 
to  the  opposite  party  or  his  attorney 
(provided  such  party,  if  not  a  body 
corporate,  would  be  liable  to  be  called 
and  examined  as  a  witness  upon  such 
matter)  interrogatories  in  writing  upon 
any  matter  as  to  which  discovery  may 
be  sought,  and  require  such  party,  or 
in  the  case  of  a  body  corporate,  any 
of  the  officers  (Madrid  Bk.  v.  Bay- 
ley,  36  L.  J.  Q.  B.  15  ;  2  Law  Rep. 
Q.  B.  37;  8  B.  &  S.  29,  S.  C.)  of 
such  body  corporate,  icithin  ten  days 
to  answer  the  questions  in  writing  by 
affidavit,  to  be  sworn  and  filed  in  the 
ordinary  way;  and  any  party  or  offi- 
cer omitting,  without  just  cause,  suffi- 
ciently to  answer  all  questions  as  to 
which  a  discovery  may  be  sought  with- 
in the  above  time,  or  such  extended 
time  as  the  court  or  a  judge  shall  al- 
low, shall  be  deemed  to  have  com- 
mitted a  contempt  of  the  court,  and 
shall  be  liable  to  be  proceeded  against 
accordingly." 

Mr.  Taylor  (Ev.  §§  482,  ff.)  thus 
recapitulates  the  rulings  under  the 
above  statute,  rulings  which  may  be 
of  value  in  this  country  under  simi- 
lar statutes  :  "  When  these  provisions 
first  came  into  operation,  a  very  emi- 
nent judge  appears  to  have  suggested 
that  any  question  might  be  asked  on 
interrogatories  which  could  be  put 
were  the  party  a  witness  at  the  trial ; 
Osborn  v.  London  Dock  Co.  10  Ex. 
R.  698,  702,  per  Aldcrson,  B. ;  sec 
Zychlinski  v.  Majtby,  10   Com.  B.  N. 


S.  838;  but  this  interpretation  of  the 
statute  has  since  been  considered  too 
wide,  and  it  is  now  properly  held 
that  courts  of  law  should  be  guided, 
though  not  fettered,  by  the  rules  and 
principles  which  courts  of  equity  act 
upon  with  respect  to  bills  of  discov- 
ery; Pye  V.  Butterficld,  34  L.  J.  Q. 
B.  17;  5  B.  &  S.  829,  S.  C. ;  and 
that  the  interrogatories  should  be  con- 
fined to  matters  which  might  be  dis- 
covered by  a  bill  in  equity.  Whate- 
Icy  V.  Crowter,  5  E.  &  B.  712,  per 
Ld.  Campbell.  In  an  action  of  eject- 
ment, therefore,  a  defendant  will  not 
be  compelled  to  answer  interrogato- 
ries, where  the  answer  would  tend  to 
show  that  he  had  incurred  a  forfeit- 
ure of  his  lease  by  reason  of  his  hav- 
ing underlet  the  premises.  Pye  v. 
Butterfield,  34  L.  J.  Q.  B.  17;  5 
B.  &  S.  829,  S.  C.  Keither  can  a 
party  inquire  into  facts  which  relate 
exclusively  to  the  case  of  his  adver- 
sary, although  he  may  ask  any  ques- 
tions the  answers  to  which  will  ad- 
vance his  own  case,  even  though  they 
may  also  disclose  his  opponent's  case. 
Bayley  v.  Griffiths,  31  L,  J.  Ex.  477; 
1  H.  &  C.  429,  S.  C;  Goodman  v. 
Holroyd,  15  Com.  B.  N.  S.  839  ;  Haw- 
kins V.  Carr,  and  Parsons  v.  Carr,  35 
L.  J.  Q.  B.  81;  1  Law  Rep.  Q.  B. 
89,  S.  C;  6  B.  &  S.  995,  5.  C. ; 
Stewart  v.  Smith,  2  Law  Rep.  C.  P. 
293.  For  instance,  in  an  action  on 
a  policy  of  insurance  on  a  cargo,  claim- 
ing for  a  total  loss,  if  the  pleas  be 
only  such  as  deny  the  policy,  the  in- 
terest, and  the  loading,  the  plaintiff 
cauuot  be  interrogated  aa  to  the  sev- 

469 


§  491.] 


THE  LAW   OF  EVIDENCE. 


[book  n. 


stand.^     Whoever  is  yet  to  be  examined,  though  party  or  prose- 


eral  matters  Avhich  these  pleas  will 
require  him  to  prove ;  but  if  there  be 
also  a  plea  denying  the  loss,  interroga- 
tories may  be  tendered  with  respect  to 
the  amount  of  damage  ;  and  if  the  de- 
fendant were  further  to  plead  that  the 
sailing  of  the  vessel  had  been  unrea- 
sonably delayed,  the  plaintiff  might 
be  questioned  with  respect  to  this  fact. 
Zarifi  V.  Thornton,  2G  L.  J.  Ex.  214. 
On  the  same  ground,  if  an  action  for 
negligence  be  brought  against  a  sur- 
veyor or  an  attorney,  the  defendant 
may  be  asked  what  steps  he  took  to 
perform  his  duty.  Whateley  v.  Crow- 
ter,  5  E.  &  B.  709.  So,  where  a  plain- 
tiff had  brought  an  action  for  money 
had  and  received,  and  his  right  to  re- 
cover rested  on  the  assumption  that 
the  defendant  had,  in  selling  certain 
property  to  him,  falsely  professed  to 
act  as  broker  for  a  third  party,  the 
court  allowed  interrogatories  to  be 
delivered  to  the  defendant,  requiring 
him  to  answer  whether  he  had  acted 
in  the  transaction  as  principal  or  as 
agent,  and,  if  as  agent,  to  name  his 
principal.  Thbl  v.  Leask,  10  Ex.  R. 
704.  See,  also  Blight  v.  Goodliffe, 
18  Com.  B.  N.  S.  757. 

"Where  a  party,  on  being  interro- 
gated as  to  whether  he  had  in  his  pos- 
session any  deeds  relating  to  the  lands 
in  dispute,  answered  on  oath  that  he 
had,  but  that  such  deeds  were  exclu- 
sively the  evidences  of  his  own  title 
to  the  property,  and  did  not  show  any 
title  in  his  opponent,  the  court  held 
that  he  could  not  be  compelled  to 
state  the  contents  of  the  documents, 
or  to  describe  them,  but  that  his  oath 


as  to  their  effect  must  be  deemed  con- 
clusive. Adams  v.  Lloyd,  3  H.  &  N. 
351.  If  />nnia  /"rtcte  evidence  of  the 
loss  of  a  deed  be  made  out  by  affida- 
vit, the  party  supposed  to  have  exe- 
cuted the  instrument  may  be  inter- 
rogated de  bene  esse  as  to  its  contents. 
Wolverhampton  New  Waterw.  Co. 
V.  Hawksford,  5  Com.  B.  N.  S.  703. 
Again,  a  plaintiff  in  ejectment  may 
interrogate  the  defendant  as  to  whether 
he  is  not  really  defending  the  action 
on  behalf  of  a  third  person;  for  an 
affirmative  answer  to  such  a  question 
would  go  far  towards  making  the  dec- 
larations of  such  third  person  admissi- 
ble in  evidence.  Sketchley  v.  ConoUy, 
2  New  R.  23,  per  Q.  B. 

"  It  appears  now  to  be  determined 
(Flitcroft  V.  Fletcher,  11  Ex.  R.  543  ; 
Kettlewell  v.  Dyson,  9  B.  &  S.  300), 
notwithstanding  some  decisions  which 
'look  the  other  way;'  see  Edwards 
V.  Wakefield,  6  E.  &  B.  469 ;  Stoate 
V.  Rew,  32  L.  J.  C.  P.  160;  14  Com. 
B.  N.  S.  209,  S.  a  ;  see,  also,  Wallen 
V.  Forrest,  L.  R.  7  Q.  B.  239;  that  a 
defendant  in  ejectment  is  entitled  to 
interrogate  the  plaintiff,  not  only  as  to 
the  character  in  which  he  sues,  but  as 
to  the  nature  of  the  pedigree  on  which 
he  relies;  but  the  affidavit  in  support 
of  such  an  application  should,  as  it 
seems,  disclose  special  circumstances; 
Pearson  v.  Turner,  16  Com.  B.  N.  S. 
157;  33  L.  J.  C.  P.  224,  S.  C. ;  and 
the  ruling  can  only  be  upheld  on  the 
ground  that  the  court  has  a  general 
power  to  require  any  person,  who 
seeks  to  disturb  the  possession  of  an- 
other, to  say  by  what  right  he  does 


1  Southey  v.  Nash,  7  C.  &  P.  632  ; 
Selfe  V.  Isaacson,  1  F.  &  F.  194;  Peo- 
ple r.  Green,  1  Parker  C.  R.  11;  State 
V.  Zellers,  2  Halst.  220  ;  Errissman  v. 
Errissman,    25  111.    136  ;    Johnson  v. 

470 


State,  2  Ind.  652;  Benaway  v.  Conyne, 
3  Chandl.  214  ;  Nelson  v.  State,  2 
Swan,  237;  McLean  v.  State,  16  Ala. 
672. 


CHAP.  VIII.] 


WITNESSES  :   EXAMINATION. 


[§  491. 


cutor,  is  subject  to  this  rule.^     A  witness's  testimony,  it  is  true, 


so;  per  Alderson,  B.,  in  Flitcroft  v. 
Fletcher,  11  Ex.  R.  549;  Bellwood  v. 
Wetherell,  1  Y.  &  C.  Ex.  R.  211,  218, 
per  Ld.  Abinger;  Stoate  v.  Rew,  32 
L.  J.  C.  P.  160;  14  Com.  B.  N.  S. 
20d,  S.  C.  A  plaintiff,  therefore,  in 
ejectment,  who  chiims  as  heir  at  law, 
will  not  be  permitted  to  interrogate 
the  person  in  possession  of  the  prop- 
erty as  to  the  nature  of  his  title.  Hor- 
ton  V.  Bott,  2  H.  &  N.  249.  Neither, 
as  a  general  rule,  will  any  party  be 
suffered  to  expose  his  adversary  to 
fishing  interrogatories,  or  to  require 
him  to  declare  on  oath  how  he  intends 
to  shape  his  case.  Edwards  v.  Wake- 
field, G  E.  &  B.  4G2;  Moor  v.  Roberts, 
26  L.  J.  C.  P.  246;  2  Com.  B.  N.  S. 
671,  S.  C.  For  example,  in  an  action 
of  trover  by  the  trustee  of  a  bankrupt, 
the  defendant  will  not  be  permitted  to 
administer  interrogatories  to  tlie  plain- 
tiff for  the  purpose  of  discovering  what 
case  he  intends  to  set  up  at  the  trial. 
Edwards  v.  Wakefield,  6  E.  &  B.  462. 
See,  also,  Finney  v.  Forward,  35  L.  J. 
Ex.  42;  1  Law  Rep.  Ex.  6  ;  and  4  H. 
&  C.  33,  S.  C.  But  see  Derby  Bank 
V.  Lumsden,  5  Law  Rep.  C.  P.  107; 
39  L.  J.  C.  P.  72,  S.  C.  The  plain- 
tiff, too,  in  an  action  of  slander,  will 
not  (except  under  very  special  cir- 
cumstances precluding  redress  by  other 
means;  Atkinson  v.  Fosbroke,  35  L.  J. 
Q.  B.  182  ;  1  Law  Rep.  Q.  B.  628;  7 
B.  &  S.  618,  S.  C;  see  O'Connell  v. 
Barry,  2  L  R.  C.  L.  648.  Sed  qu.) 
be  allowed  to  interrogate  the  defend- 
ant with  respect  to  the  precise  words 
he  uttered,  and  when,  where,  and  to 
whom  he  spoke  them.  Stern  v.  Sevas- 
topulo,  2  New  R.  329;  32  L.  J.  C.  P. 
268;  14  Com.  B.  N.  S.  737,  S.  C. ; 
Tupling  V.  Ward,  30  L.  J.  Ex.  222  ; 
6  H.  &  N.  749,  S.  C;  Edmunds  r. 


Greenwood,  4  Law  Rep.  C.  P.  70  ;  38 
L.  J.  C.  P.  115,  S.  C.  Neither  can 
the  defendant,  in  an  action  for  negli- 
gence, interrogate  the  plaintiff  as  to 
how  the  accident  happened,  or  what 
was  the  extent  of  the  injury,  or  what 
was  the  amount  of  the  medical  charges. 
Peppiatt  V.  Smith,  3  H.  &  C.  129  ;  33 
L.  J.  Ex.  239,  S.  C.  But  see  Wright 
V.  Goodlake,  34  L.J.  Ex.  82  ;  3  H.  & 
C.  540,  S.  C.  Still  less  will  a  judge, 
except  under  very  special  circum- 
stances, permit  a  defendant,  who  ad- 
mits a  breach  of  contract,  to  interro- 
gate the  plaintiff  respecting  the  dam- 
age he  has  sustained,  with  the  view  of 
paying  money  into  court.  Jourdain  v. 
Palmer,  35  L.  J.  Ex.  69 ;  4  IL  &  C. 
171;  and  1  Law  Rep.  Ex.  102,  S.  C, 
commenting  on  Wright  i'.  Goodlake, 
34  L.  J.  Ex.  82  ;  3  n.  &  C.  540,  S.  C. 
See  Dobson  v.  Richardson,  37  L.  J. 
Q.  B.  261 ;  3  Law  Rep.  Q.  B.  778;  and 
9  B.  &  S.  516,  5.  C.  Nor,  as  it  seems, 
will  interrogatories  be  allowed,  when 
the  interrogator  has  ample  means  of 
obtaining  from  his  own  agents  the  in- 
formation which  he  professes  to  seek 
from  his  opponent.  Bird  v.  Malzy,  1 
Com.  B.  N.  S.  308.  But  see  Kew  v. 
Hutchins,  10  Com.  B.  N.  S.  837,  per 
Erie,  C.  J. ;  or  when  the  object  is  to 
contradict  a  written  instrument;  Moor 
V.  Roberts,  26  L.  J.  C.  P.  246  ;  2  Com. 

B.  N.  S.  671,  S.  C. ;  or  to  gain  some 
tricky  advantage  not  dependent  on 
real  information,  or  to  heap  up  need- 
less costs,  Bechervaise  v.  Gt.  W'-st. 
Ry.  Co.  6  Law  Rep.  C.  P.  36;  4  L.  J. 

C.  P.  8,  S.  C. 

"The  judges  have  al.-^o,  on  the 
subject  of  interrogatories,  laid  down 
the  following  j)ractical  rules  :  first, 
that  on  a  motion  to  allow  the  exhibi- 
tion of  interrogatories,  the   court  will 


1  R.  V.  Newman,  3  C  &  K.  260. 


471 


§  491.]  THE   LAW    OF   EVIDENCE.  [BOOK  II 

will  not  be  necessarily  ruled  out  because  he  remains  in    court, 


simply  determine  the  principle  on 
wbieli  they  are  to  be  allowed  or  re- 
fused, and  will  leave  their  form,  in 
case  of  dispute,  to  be  settled  at  cham- 
bers. Zarifi  V.  Thornton,  26  L.  J.  Ex. 
214.  See  Robson  v.  Crawley,  2  H.  & 
N.  766  ;  S.  C,  notn.  Robson  v.  Cooke, 
27  L.  J.  Ex.  153,  per  Pollock,  C.  B.; 
Rew  V.  Hutchins,  10  Com.  B.  N.  S. 
829,  837.  See,  also,  Phillips  v.  Lew- 
in,  34  L.  J.  Ex.  37;  secondly,  that, 
as  the  legislature  has  fixed  the  time 
of  proceeding,  the  court,  except  under 
special  cu'cumstances,  amounting  al- 
most to  a  case  of  urgent  necessity  (see 
Acheson  v.  Henry,  5  I.  R.  C.  L.  496), 
will  not  permit  the  delivery  of  inter- 
rogatories by  a  plaintiff  before  he  has 
declared,  or  by  a  defendant  before  he 
has  pleaded;  Martin  v.  Hemming,  10 
Ex.  R.  478;  explained  in  Forshaw  v. 
Lewis,  Ibid.  716 ;  Croomes  v.  Morrison, 
5  E.  &  B.  984 ;  Jones  v.  Pratt,  6  H.  & 
N.  697;  Anon.  v.  Parr,  34  L.  J.  Q.  B. 
95;  S.  C,  nom.  Morris  v.  Parr,  6  B.  & 
S.  203;  thirdly,  that  a  plaintiff  may 
without  a  special  affidavit  obtain  leave 
to  deliver  interrogatories  after  the  de- 
fendant has  pleaded;  James  v.  Barns, 
17  Com.  B.  596;  fourthly,  that  where 
a  party  interrogated  admits  his  posses- 
sion of  documents,  he  cannot  be  at- 
tached for  refusing  to  set  forth  their 
contents,  but  his  opponent  must  apply 
for  an  order  to  inspect  them,  either 
under  §  50  of  the  act,  or  under  §  6  of 
14  &  15  Vict.  c.  99;  Scott  v.  Zygomala, 
4  E.  &  B.  483  ;  Herschfeld  v.  Clarke, 
11  Ex.  R.  712;  fifthly,  that  a  plaintiff 
may  be  ordered  to  answer  interroga- 
tories, though  he  be  a  foreigner  resi- 
dent abroad ;  Pdhl  v.  Young,  25  L.  J. 
Q.  B.  23  ;  sixthly,  that  an  application 
for  leave  to  deliver  interrogatories,  pro- 
vided it  be  made  hand  fide  ;  Baker  v. 
Lane,  34  L.J.  Ex.57;  3  H.  &  C.  544, 
S.  C,  as  explained  away  in  Bickford 

472 


V.  D'Arcy,  35  L.  J.  Ex.  202;  4  H.  & 
C.  540,  S.  C. ;  and  be  supported  by 
an  affidavit  disclosing  special  circum- 
stances; Villeboisnet  t".  Tobin,  38  L.J. 
C.  P.  146;  4  Law  Rep.  C.  P.  184, 
S.  C. ;  Inman  v.  Jenkins,  39  L.  J.  C. 
P.  258;  5  Law  Rep.  C.  P.  738,  S.  C; 
cannot  be  resisted  on  an  affidavit  that 
the  questions,  if  answered,  may  tend 
to  criminate  the  party  interrogated; 
Osborn  i'.  London  Dock  Co.  10  Ex.  R. 
698,  M'Fadzen  v.  May.  &  Corp.  of 
Liverpool,  3  Law  Rep.  Ex.  279;  37  L. 
J.  Ex.  193,  S.  C;  Bartlett  v.  Lewis, 

31  L.  J.  C.  P.  230;  12  Com.  B.  N.  S. 
249,  (S.  C;  Goodman  v.  Holroyd,  15 
Com.  B.  N.  S.  839;  Simpson  v.  Car- 
ter, 30  L.  J.  Ex.  224,  in  n.  7;  or  may 
expose  him  to  a  forfeiture  of  his  estate 
Chester  v.  Worlley,  17  Com.  B.  410 
Bickford  v.  D'Arcy,  35  L.  J.  Ex.  202 
1  Law  Rep.  Ex.  354  ;  and  4  H.  &  C 
534,  ,S.  C;  See  Pye  v.  Butterfield, 
34  L.  J.  Q.  B.  17;  seventhly,  that  the 
enactment  under  discussion  applies 
to  actions  of  ejectment ;  Flitcroft  v. 
Fletcher,  11  Ex.  R.  543;  Pearson  v. 
Turner,  16  Cora.  B.  N.  S.  157;  33 
L.  J.  C.  P.  224,  S.  C. ;  Horton  v. 
Bott,  2  H.  &  N.  249;  Stoate  v.  Rew, 

32  L.  J.  C.  P.  160  ;  14  Com.  B.  N.  S. 
109,  S.  C;  Chester  v.  Wortley,  17 
Com.  B.  418  ;  but  see  Blyth  v.  L'- 
Estrange,  3  Fost.  &  Fin.  154,  per 
Blackburn,  J. ;  and  interpleader  is- 
sues; White  V.  Watts,  12  Com.  B.  N. 
S.  26  7;  as  well  as  to  ordinary  actions; 
and,  eighthly,  that  it  extends  equally  to 
real  and  to  nominal  parties;  M'Kewan 
V.  Rolt,  4  H.  &  N.  738  ;  Mason  v. 
Wythe,  3  Fost.  &  Fin.  153,  per  Keat- 
ing, J." 

As  several  of  our  American  statutes 
are  modelled  after  the  English  stat- 
ute, the  above  rulings  may  be  of  value 
to  ourselves. 


CHAP.  VIII.] 


WITNESSES  :    EXAMINATION. 


[§  492. 


even  wilfully,  after  being  ordered  to  withdraw ;  ^  but  he  exposes 
himself,  by  his  disobedience,  to  an  attachment  for  contempt.^ 
But  where  the  party  calling  the  witness  is  to  blame  for  the  dis- 
obedience, then  the  witness  may  be  excluded.^  To  prevent  a 
witness  from  being  unduly  influenced  by  the  knowledge  of  the 
line  to  which  his  testimony  is  expected  to  reach,  it  has  even 
been  held  that  the  court  will  order  his  withdrawal  during  a  legal 
argument  in  respect  to  his  evidence.*  But  this  goes  too  far,  since 
it  would  require  witnesses  to  leave  the  court  whenever  the  coun- 
sel calling  them  states,  as  he  constantly  is  compelled  to  do,  what 
he  intends  to  prove  by  questions  he  may  put.  Yet  in  all  cases 
where  there  is  reason  to  believe  that  a  willing  witness  is  waiting 
to  catch  his  instructions  from  counsel,  the  witness  should  be  ex- 
cluded. The  rule,  however,  will  be  made  to  bend  as  far  as  pos- 
sible to  the  convenience  of  the  witness.  Thus  experts  may  be 
permitted  to  remain  in  court  until  the  expert  testimony  begins ;  ^ 
and  to  attorneys  it  is  especially  conceded  that  they  may  be  ex- 
cused, when  personally  required  in  court,  from  such  withdrawal.^ 
§  492.  When  a  witness's  competency  is  in  dispute,  he  may  be 


1  Chandler  v.  Home,  2  M.  &  R. 
423;  Cobbett  v.  Hudson,  1  E.  &  B. 
14 ;  Hopper  v.  Com.  6  Grat.  684  ; 
Langlin  v.  State,  18  Ohio,  99;  Por- 
ter V.  State,  2  Ind.  435  ;  Grimes  v. 
Martin,  10  Iowa,  347;  State  v.  Fitz- 
simmons,  30  Mo.  236  ;  Keith  v.  Wil- 
son, 6  Mo.  434 ;  State  v.  Salge,  2  Nev. 
321;  Davenport  v.  Ogg,  15  Kans.  363; 
Pleasant  v.  State,  15  Ark.  624;  Bell 
V.  State,  44  Ala.  393  ;  Sartorius  v. 
State,  24  Miss.  602  ;  People  v.  Bos- 
cowitcli,  20  Cal.  436.  The  proper 
view  (Wilson  v.  State,  52  Ala.  299) 
is,  that  the  examination  of  the  witness 
in  such  case  is  discretionary  with  the 
court.  In  2  Phill.  on  Evid.  (5th  Am. 
ed.)  744,  it  is  said  :  "  If  a  witness,  who 
has  been  ordered  to  withdraw,  con- 
tinues in  court,  it  was  formerly  con- 
sidered to  be  in  the  judge's  discretion 
whether  or  not  the  witness  should  be 
examined.    But  it  may  now  be  consid- 


ered as  settled,  that  the  circumstance 
of  a  witness  having  remained  in  court, 
in  disobedience  to  an  order  of  with- 
drawal, is  not  a  ground  for  rejecting 
his  evidence,  and  that  it  merely  af- 
fords matter  of  observation."  The 
old  rule  was  always  to  exclude  the 
testimony.  Parker  v.  McWilliam,  6 
Bing.  683  ;  Thomas  v.  David,  7  C.  & 
P.  350;  Jackson  i;.  State,  14  Ind. 
327. 

2  Chandler  r.  Home,  2  M.  &  Rob. 
423  ;  Bell  v.  State,  44  Ala.  393. 

8  Dyer  v.  Morris,  4  Mo.  214. 

*  R.  V.  Murphy,  8  C.  &  P.  307; 
Charnock  v.  Devings,  3  C.  &  K.  378  ; 
Selfe  V.  Isaacson,  1  F.  &  F.  194  ;  Nel- 
son  V.  State,  2  Swan,  237. 

6  Alison,  Pract.  Cr.  L.  489 ;  Tay- 
lor's Ev.  §  1260. 

»  Everett  v.  Lowdham,  4  C.  &  P. 
91  ;  Pomeroy  v.  Baddely,  U.  &  M. 
430. 

473 


§  493.]  THE  LAW  OF  EVIDENCE.  [BOOK  II. 

examined,  according  to  the  old  practice,  on  his  voir  dire,  in  other 
Voir  dire  a.  words,  he  is  sworn,  with  the  usual  solemnities,  to  make 
nary'ex-  true  answers  to  all  questions  to  be  put  to  him  by  the 
amination.  court.^  The  usc  of  sucli  a  test  is  now  questioned,^  for 
if  the  witness  can  be  sworn  on  the  voir  dire,  he  can  be  sworn 
on  the  examination  in  chief ;  if  he  is  incompetent  on  the  ex- 
amination in  chief,  he  is  incompetent  on  the  voir  dire?  Hence 
it  is  now  the  English  practice  to  put  questions  as  to  competency 
to  the  witness  on  his  examination  in  chief.  When  so  examined, 
he  may  speak,  so  it  is  ruled,  as  to  the  contents  of  written  instru- 
ments without  their  being  brought  into  court.*  In  the  United 
States,  however,  the  practice  of  examining  as  to  competency  on 
the  voir  dire  continues  in  many  courts,^  though  this  is  at  the  dis- 
cretion of  the  judge,  who  may  remand  the  question  of  compe- 
tency to  the  examination  in  chief. ^  The  appeal  to  the  voir  dire 
does  not  preclude  recourse  to  other  means  of  proving  incompe- 
tency.'^ 

§  493.  It  is  elsewhere  noticed  that  the   interpretation,  by  a 

sworn  interpreter,  of  the  testimony  of  a  foreign  wit- 
Interpre-  . 

ters  to  be      ness,  is  not  hearsay.^     It  may  be  added  that  the  accu- 
racy of    the    interpretation    of   the   sworn   interpreter 
may  be  impeached,  and  is  ultimately  to  be  determined  by  the 
jury.^     A  witness,  without  being  specially  sworn,  may  interpret 

1  Mifflin  V.  Bingham,  1  Dall.  276,  28  111.  216  ;  Walker  v.  Collier,  37  III. 

2  See  Taylor's  Evidence,  §  1257.  362;  Harrel  v.   State,   1   Head,   125; 

3  See,  also,  Jacobs  v.  Layborn,   11  Bailey  v.  Barnelly,  23    Ga.  582  ;  Tar- 
M.  &  W.  685.  leton  v.  Johnson,  25  Ala.  300;  Weigel's 

*  Taylor's   Ev.  §  1257,  citing  R.  v.  Succession,  18  La.  An.  49;  Hookeru. 

Gisburn,  15  East,  57;  Lunnis   o.  Row,  Johnson,  6  Fla.  730. 

10  A.  &  E.  606  ;  Quarterman  v.  Cox,  e  Seeley  i-.  Engell,  17  Barb.  530. 

8  C.  &  P.  97;  Bi-ockbank  v.  Anderson,  ^  Stebbins  v.  Sackett,  5  Conn.  258; 

7  M.  &  Gr.  295-313;  S.  P.  Herndon  Blackstock   v.    Leidy,    19    Penn.    St. 

V.  Givens,  16  Ala.  261.  335.       See,    however,    Le   Barron   v. 

6  Fifield   V.    Smith,    21    Me.     383  ;  Redman,    30   Me.    536 ;    Schnader  v. 

Walker   v,    Sawyer,    13    N.  H.    191  ;  Schnader,  26  Penn.  St.  384;  Williams 

Smith   V.  Fairbanks,    27    N.  H.   521  ;  v.  Man.  Co.  1  Md.  Ch.  306. 

Bridge  v.  Wellington,    1   Mass.   219;  8  Supra,  §174. 

Stebbins   v,    Sackett,   5    Conn.    258;  ^  U.    S.   v.    Gibert,    2    Sumn.    19  ; 

Seeley  c.  Engell,  13N.  Y.  542  ;  Foley  Schnier  r.   People,   23  111.  17.     As  to 

V.  Mason,  6  Md.  37  ;  Wright  r.  Ma-  New  York  practice,  see  Leetch  v.  Ins. 

thews,  2   Blackf.   187  ;   Waughop   v.  Co.  2  Daly,  518. 
Weeks,  22  111.  350  ;  Diversy  v.  Will, 
474 


CHAP.  VIII.]  WITNESSES  :    EXAMINATION.  [§  496. 

foreign  terms  used  by  himself.^  When  a  witness  can  only  speak 
in  a  whisper,  the  court  may  appoint  a  suitable  person  to  repeat 
to  the  jury  what  is  said  by  the  witness.^ 

§  494.  A  witness  who  refuses  to  answer  a  question  determined 
by  the  court  to  be  proper,  is  in  contempt,  and  may  be  at-    witness 
tached  and  committed  to  custody  to  be  detained  until  he    ans"*e"r^  ^° 
replies.^     The  same  practice  exists  where  the  witness  re-    {^"'atuch^ 
fuses  to  be  sworn,  or  misbehaves  when  giving  evidence.^    '"^nt. 

§  495.  A  witness  is  not  entitled  to  set  up,  in  reply  to  a  rule  to 
show  cause  why  an  attachment  should  not  issue  against   witness  is 
him,  that  his  testimony  was  immaterial,  and  that  there-    "^  ,|"jf(^f 
fore  he  did  not  answer.^     But  if  it  appear  on  hearinsr   ['.^'"'y  ?^ 

^i     ^  '^     his  testi- 

of  the  rule,  that  his  testimony  would  be  irrelevant,  es-  mony. 
peciall}'  if  he  be  a  public  officer  whose  attendance  Avould  be 
detrimental  to  other  branches  of  the  public  service,  then  the 
court  will  refuse  the  attachment.^  But  while  public  duties  may 
be  held  to  relieve  a  party  from  attendance,  no  private  engage- 
ments, no  matter  how  solemn,  are  allowed  to  have  the  same  ef- 
fect.'^ When  attending,  it  is  not  for  the  witness  to  say  that  the 
questions  asked  him  relate  to  his  private  affairs,  and  are  irrel- 
evant.    The  question  of  relevancy  is  for  the  court.^ 

§  496.  It  is  within  the  power  of  the  court,  at  any  period  of 
the  examination,  to  put  questions  to  the  witness  for 

~      ■,.   .  ,  ~  ,  .  ,        .  Court  may 

the   purpose   of  eliciting  facts   bearing  on   the  issue  ;    examine 

and  the  witness  may  be  even  recalled  for  this  purpose. 

Nor  is  the  court,  as  to  evidence,  bound  by  the  rule  excluding 

leading  questions.®    But  an  answer  not  in  itself  evidence,  brought 

out  by  a  question  from  the  court,  may  bo  ground  for  reversal. ^"^ 

1  Kuhlman    v.    Medlinka,    29  Tex.     Chapman  y.  Davis,  3  M.  &  G.  009;  S. 
385.  C.  4  Scott  N.  R.  319. 

2  Conner  v.  State,  25  Ga.  515.  "  Dicas  v.  Lawson,   1   C,  M.  &  R. 
8  Whart.  Cr.   L.  §  3432;  Broom  &     934;  7  Dowl.  693.      See  supra,  §  383. 

Iladley's   Com.   iv.    3G4    (Am.   ed.  ii.  "^  Jackson  v.  Sea^jcr,  2  Dowl.  &  L. 

5G7);  R.    V.  Charles  worth,  2   F.  &  F.  13;  Goff  v.  Mills,  2  Dowl.  &  L.  23. 

332;  U.  S.  V.   Coolidge,  2  Gall.  3G4;  »  Tippins  r.  Coates,  G  Hare,  IG. 

U.  S.  V.  Caton,  1   Cranch   C  C.  150;  .»  Supra,  §  281;  R.  i-.  Watson.  G  C. 

People  I'.  Kelly,  24  N.  Y.  74 ;  Ilolmau  &   P.   O.J3  ;    Middleton    r.   liarned,   4 

V.  Austin,  34  Tex.  668.  Exch.  R.  243  ;   Com.  v.  Galavan,  9  Al- 

*  May,  Law  of   Pari.    405  ;   4    Bl.  Un.  271  ;  Palmer  v.  Whiti',   10  Cush. 

Com.  284.  321;  Epps  i'.  State,  19  Ga.  102. 

6  Scholes  V.  Hilton,  10  M.  &  W.  16;  "  People  v.  Lacoste,  37  N.  Y.  192. 

475 


§  499.]  THE   LAW   OF  EVIDENCE.  [BOOK  II. 

§  497.  A  witness,  examined  as  such  in  a  court  of  justice,  is  so 
Witness  f^r  privileged  that  he  is  not  liable  to  suit  for  words 
as'to'a"'^'^  spoken  by  him  in  answer  to  questions  put  by  counsel, 
swers.  with  the  allowance,  either  express  or  implied,  of  the 

court.i  And  in  England  this  protection  was  extended  in  1876 
to  volunteer  explanations,  which,  out  of  court,  would  have  been 
libellous.2 

§  498.  That  a  party  cannot  lead  his  witness  by  questions 
^.  which  in  themselves  indicate  the  answer  the  witness  is 

Witness  on  .  i       i        i  •   i    • 

examina-  desired  to  make,  is  a  check  which  in  some  junctures  is 
not  be  of  much  value.  Against  the  rule  it  has  been  sometimes 
prompte  .  ^^j j  ^-^^^^  ^^  unwilling  witness  requires  leading  ques- 
tions, and  that  a  willing  witness  can  do  without  them.  The  first 
objection  we  will  consider  presently.  As  to  the  second  objec- 
tion, it  must  be  observed  that  there  are  contingencies  in  a  case 
for  which  no  witness,  however  willing,  can  have  a  solution  pre- 
arranged for  his  use.  Skilful  counsel  may  indeed  see  on  the 
moment  such  solutions,  and  if  counsel  were  allowed  to  put  the 
solution  in  the  mouth  of  an  unprincipled  witness,  there  would  be 
many  cases  in  which  truth  would  be  thereby  suppressed  and  jus- 
tice frustrated. 

§  499.  Hence  it  is  that  the  courts  have  united  in  maintaining 
Leading  that  a  party  is  not  permitted,  as  a  rule,  to  put  to  his 
usually"^  witness  questions  which  involve  or  assume  the  answer 
proiiibited.  -which  the  party  desires  the  witness  to  make,  or  which 
suggest  disputed  facts  as  to  which  the  witness  is  to  testify.^  The 
rule,  Mr.  Best  tells  us,*  is  based  on  two  reasons.  First,  and 
principally,  on  the  supposition  that  the  witness  has  a  bias  in 
favor  of  the  party  bringing  him  forward,  and  hostile  to  his  oppo- 
nent.    Secondly,  that  the  party  calling  a  witness  has  an  advan- 

1  Revis  V.  Smith,  18  C.  B.  126;  Wend.  229 ;  Snyder  y.  Snyder,  6  Binn. 
Henderson  v.  Broomhead,  4  H.  &  N.  483;  Lee  v.  Tinges,  7  Md.  215;  Hop- 
569;  Kennedy  v.  Hilliard,  10  Ir.  L.  per  t-.  Com.  6  Grat.  684;  Carpenters. 
R.  N.  S.  195.  Ambroson,  20111.  170;  Osborn  v.  For- 

2  Seaman  v.  Netherelift,  L.  R.  1  C.  shee,  22  Mich.  209;  Stringfellow  v. 
P.  D.  540;  cited  infra,  §  722.  State,  26  Miss.  157;  McLean  y.  Thorp, 

8  Stephen's  Ev.    123  ;     NichoUs  v.  3  Mo.  315  ;    Mathers  v.  Buford,  17 

Dowding,  1  Stark.  R.  81;  Page  r.Par-  Tex.  152. 

ker,  40  N.  H.  47;  Wells  v.  Man.  Co.  *  Ev.  §  641. 
48  N.   H.  491;  People  v.  Mather,  4 

476 


CHAP.  VIII.]  WITNESSES  :    LEADING   QUESTIONS. 


[§  500. 


tage  over  his  adversary,  in  knowing  beforehand  what  the  witness 
will  prove,  or  at  least  is  expected  to  prove  ;  and  that,  conse- 
quently, if  he  were  allowed  to  lead,  he  might  interrogate  in  such 
a  manner  as  to  extract  only  so  much  of  the  knowledge  of  the 
witness  as  would  be  favorable  to  his  side,  or  even  put  a  false 
gloss  upon  the  whole. ^ 

§  500.  Yet  to  this  rule  there  are  several  marked  exceptions, 
where  an  unwilling  witness,  or  a  witness  called  from  the   Exception 
necessity  of  the  case,  may  have  put  to  him  questions   ^^i\\[^^' 
requiring  an  answer  of  yes  or  no  to  a  specific  detailed   witness. 
propo&ition.2      This  is  the  case  -with  attesting  witnesses  called 
by  order  of  court ;  ^  with  unwilling  witnesses  who  have  made 
prior  contradictory  statements,*  and  eminently  so  with  parties, 


^  It  is  sometimes  said,  "  Tliat  the 
test  of  a,  leading  question  is  whether 
an  answer  to  it  by  '  yes  '  or  '  no  ' 
would  be  conclusive  upon  the  matter 
in  issue  ;  but  although  all  such  ques- 
tions undoubtedly  come  within  the 
rule,  it  is  by  no  means  limited  to 
them.  Where  '  yes  'or  '  no  '  would 
be  conclusive  on  any  part  of  the  issue, 
the  question  would  be  equally  objec- 
tionable; as  if,  on  traverse  of  notice 
of  dishonor  of  a  bill  of  exchange,  a 
witness  were  led  either  as  to  the  fact 
of  giving  the  notice,  or  as  to  the  time 
when  it  was  given.  So,  leading  ques- 
tions ought  not  to  be  put  when  it  is 
sought  to  prove  material  and  prox- 
imate circumstances.  Thus,  on  an 
indictment  for  murder  by  stabbing, 
the  asking  a  witness  if  he  saw  the  ac- 
cused covered  with  blood  and  with  a 
knife  in  his  hand  coming  away  from 
the  corpse,  would  be  in  the  highest 
degree  improper,  though  all  the  facts 
embodied  in  this  question  are  consist- 
ent with  his  innocence.  In  practice, 
leading  questions  are  often  allowed  to 
pass  without  objection,  sometimes  by 
express,  and  sometimesbytacitconsent. 
This  latter  occurs  where  the  questions 
relate  to  matters  which,  though  strict- 
ly speaking  in  issue,  the  examining 
counsel  is  aware  are  not  meant  to  be 


contested  by  the  other  side;  or  where 
the  opposing  counsel  does  not  think  it 
worth  his  while  to  object. 

"  On  the  other  hand,  however,  very 
unfounded  objections  are  constantly 
taken  on  this  ground.  A  question  is 
objectionable  as  leading  when  it  sug- 
gests the  answer,  not  when  it  merely 
directs  the  attention  of  the  witness  to 
the  subject  respecting  which  he  is  ques- 
tioned."    Ibid. 

2  Parkin  v.  Moon,  7  C.  &  P.  409; 
R.  V.  Chapman,  8  C.  &  P.  559;  State 
V.  Lull,  .37  Me.  24G;  State  v.  Benner, 
64  ]\Ie.  2G7;  Severance  v.  Carr,  43 
N.  II.  G5;  Moody  v.  Rowell,  17  Pick. 
490;  York  v.  Pease,  2  Gray,  282; 
Green  v.  Gould,  3  Allen,  4G5;  Cronan 
V.  Cotting,  99  Mass.  334;  People  v. 
Mather,  4  AVend.  229  ;  AValkcr  v. 
Dunspaugh,  20  N.  Y.  170;  Stevens 
V.  Benton,  39  IIow.  (N.  Y.)  Pr.  13; 
Bank  of  North.  Liberties  v.  Davis,  6 
"Watts  &  S.  285;  Parmclee  t'.  Austin, 
20  111.  35;  Towns  r.  Alford,  2  Ala. 
378;  Blevins  v.  Pope,  7  Ala.  371; 
Smith  V.  Ilutchings,  30  Mo.  380;  Leon- 
ard r.  AVynn,  1  Week.  Notes  of  Cases, 
189.     Infra,  §  730. 

8  Bowman  v.  Bowman,  2  M.  &  Rob. 
501.     Infra,  §§  723-730. 

*  Infra,  §§  549-50. 

477 


§  502.]  THE   LAW    OF   EVIDENCE.  [BOOK  II. 

whom,  under  the  new  practice,  opposing  parties  may  call  to 
testify-  as  to  handwriting  or  other  material  facts. ^ 

§  501.  Nor  does  the  rule  preclude  a  party  from  refreshing  the 
And  as  to  memory  even  of  friendly  witnesses  when  the  tendency 
^'weak  o^  ^^^®  question  is  to  lead  the  witness  to  the  topic  rather 
memory.  t;]^^^^^  ^q  exhibit  the  topic  to  the  witness.^  A  witness, 
for  instance,  in  that  confusion  of  memory  so  common  when  a 
forced  effort  is  made  to  recall  names  or  formulas,  may  have  a 
name  given  to  him,  so  that  he  may  recognize  that  which  he  is 
striving  to  recollect.^  Of  this  we  have  several  illustrations  in 
the  Tichborne  prosecution.  Nor  can  we  do  otherwise  than  per- 
mit questions  involving  specifications  to  be  put  to  persons  whose 
mental  associations  are  feeble ;  for  while  such  persons  may 
narrate  with  extraordinary  truth  whatever  they  recollect,  they 
may  not  be  able  to  recollect  unless  the  topic  be  presented  to 
them  in  the  concrete.'* 

§  502.  So  a  leading  question  is  permitted  when  this  form  is 
So  when  the  natural  mode  of  bringing  out  categorically  the  in- 
tion^is  "^^'  fo^Jii^^^ion  required.^  A  person  whose  identification  is  at 
natural.  issue  may  be  in  a  court  room.  The  proper  question  in 
most  cases  undoubtedly  is  to  ask  the  witness,  "  Is  the  person  in 
question  now  in  the  court  room,  if  so  point  him  out."  But  when 
there  is  a  prisoner  in  the  dock  charged  with  an  offence,  to  tell  a 
witness  to  look  round  the  court  room  and  see  whether  he  can 
pick  out  the  person  to  be  identified,  would  be  virtually  to  tell 
him  to  look  at  the  person  in  the  dock  and. ask  him  whether  the 
prisoner  i§  the  person  in  question.  In  such  cases  it  is  therefore 
admissible  to  put  the  latter  question  directly.^ 

1  Clark  V.  Saffery,  Ry.  &  M.  126;  ney  v.  Arnold,  18  Barb.  434  ;  Boothby 
Foster,  in  re,  44  Vt.  570;  Brubacker  v.  Brown,  40  Iowa,  104  ;  Lowe  v. 
V.  Taylor,  76  Penn.  St.  83.  See  Hoi-  Lowe,  40  Iowa,  220;  Donnell  v.  Jones, 
brook  V.  Mix,  1  E.  D.  Smith,  154.  13  Ala.  490;  Long  v.  Steiger,  8  Tex. 
See  supra,  §  489.  460. 

2  Courteen  v.  Touse,  1  Camp.  43;  ^  Spear  v.  Richardson,  37  N.  H. 
Gunter  u.  Watson,  4  Jones  L.  455.  23;  Hale  v.  Taylor,   45  N.  H.  405 

3  Acerro  v.  Petroni,  1  Stark.  Rep.  Potter  v.  Bissell,  3  Lansing,  205 
100;  Kemmerer  v.  Edelman,  23  Penn.  Knapp  v.  Smith,  27  N.  Y.  277;  Wil 
St.  143.  son  V.  McCuUough,  23  Penn.  St.  440 

*  Edmonds  v.  Walker,  3   Stark.  7;  Cogley  v.    Cushman,   16  Minn.  397 

Huckins  v.   Ins.  Co.   31  N.  H.   238;  Adams  r.  Harrold,  29  Ind.  198. 

Moody  V.  Rowell,  17  Pick.  498;  Che-  *  R-  »•  Berenger,  2  Stark.  R.  129, 
478 


CHAP.  VIII.]  WITNESSES  :    LEADING   QUESTIONS.  [§  507. 

§  503.  So,  also,  when  a  witness  is  called  to  rebut  statements  to 
his  discredit  made  by  witnesses  on  the  opposite  side,  he    so  when 
may  be  asked  specifically  whether  he  said  or  did  the   cai'ied^^to* 
particular  things  with  which  he  is  charged.^  contradict. 

§  504.  Nor  is  it  necessary  for  counsel  to  begin  even  with  a 
willing  witness  with  a  series  of  inquiries  to  elicit  the 
uncontested  conditions  of  a  case.     It  is  admissible  to   certain 
assume  such  of  these  conditions  as  are  undisputed  ;  and   are  a'gf'^^ 
this  may  be  done  by  way  of  recapitulation  to  questions   ''""^*^'^- 
addressed  to  the  witness.^     Such  recapitulation,  however,  cannot 
introduce  facts  not  in  evidence.^ 

§  505.  A  trial  might  be  mischievously  delayed  if  a  party  were 
permitted  to  call  all  the  witnesses  he  chooses  to  prove  q^^.  ^  ^ 
any  one  particular  relevant  point ;  and  consequently,  discretion 
when  such  point  appears  to  the  court  to  be  satisfactorily  nmiation  of 
established,  the  further  calling  of  witnesses  to  prove  and  of  ex- 
it may  be  stopped ;  subject,  however,  to  the  right  to  *™'"'*"°°- 
recall  should  the  point  be  subsequently  disputed.**  The  court 
also,  has  a  discretionary  power  to  limit  the  examination  and 
cross-examination  of  witnesses  as  to  collateral  or  merely  cumula- 
tive issues,  as  well  as  to  shape  the  order  in  which  evidence  is  to 
be  produced.^ 

§  506.  The  mode  and  tone  of  examination  are  neces-   so  ds  to 
sarily  subject  to  the  discretion  of  the  court  trying  the 


mode  of 
cxaniina- 


case 


6  tion. 


§  507.  Ordinarily  a  witness  cannot  be  asked  as  to  a  conclusion 
of  law.     Sometimes  this  has  been  so  far  pressed  as  to  involve 

n;    R.   V.   Watson,   32   How.   St.   Tr.  thony  r.  Smith,  4  Bosw.  (N.  Y.)  503; 

74.  Gray  i'.  St.  John,  35  111.  222. 

1  See  Ilallett  t'.  Couscns,  2  M.  &  R.  «  Wright  i'.  Foster,  109  Mass.  57; 
238.     Tiifra,  §  5G9.  Pock   v.   Richmond,   2    E.  D.  Smith, 

2  Nitholls  V.  Dowding,  1  Stark.  R.  380;  Duncan  v.  McCuUough,  4  Scrg. 
81;  Poo[)le  v.  Mather,  4  Wond.  229;  &R.  480;  thou^di  see  Eames  r.  Eames, 
Strawbrid^'e  v.  Spann,  8  Alabama,  41  N.  11.  177;  Miilhollin  v.  State,  7 
820.  Iiid.  GtG;  Dodge  r.  Dunham.  41    Ind. 

8  Baltimore  R.  R.  v.  Thompson,  10  188;  Mix   v.  Osby,  <;2   III.    193;    Mo- 

Md.   76;  Carpenter  i-.  Ambroson,   20  rein  r.  Solomons,  7  Rich.  97;  Adriancc 

111.   170;  People  v.   Graham,  21  Cal.  i-.  Arnot,  31  Mo.  471  ;  Crosett  r.  Whe- 

2G1.  Ian,  44  Cal.  200. 

*  Bunnell  v.  Butler,   23  Conn.   G5  ;  «  Schuchardt  r.  Aliens,  1  Wall.  359; 

Bissell  V.  Cornell,  24  Wend.  354;  An-  Rca  v.  Missouri,  17  Wall.  512  ;  Com. 

479 


§  .w.] 


THE   LAW   OF  EVIDENCE. 


[book  n. 


the  assumption  that  a  witness  cannot  be  asked  as  to  conclusions 
^.  ^  of  fact.  The  error  of  this  assumption  will  be  seen 
cannot  be  when  we  remember  that  there  are  few  statements  of 
to  conciii-     fact  that  are  not  conclusions  of  fact.^     It  is  otherwise 

sion  of  law.  ,  i       .  p   ^  i  •   i  £  ^ 

as  to  conclusions  oi  law,  which,  so  tar  as  concerns  do- 
mestic law,  are  for  the  court  to  draw  and  not  for  witnesses.^ 
Among  such  conclusions  of  law,  legal  responsibility  is  one  of  the 
most  conspicuous.  A  witness,  no  matter  how  skilful,  is  not  to 
be  permitted  to  testify  as  to  whether  or  no  a  party  is  responsi- 
ble to  the  law  ;  ^  or  whether  certain  facts  constitute  in  law  an 
agency.*  Nor  is  even  an  expert  allowed  to  state  whether  lie 
considered  a  deceased  person  competent  to  make  a  will.^  It  has 
also  been  held  that  an  expert  in  insurance  is  not  admissible  to 
state  whether  certain  conceded  conditions,  in  respect  to  an  in- 
sured building,  affected  the  risk.^  It  has  been  ruled,  however, 
that  an  expert  may  state  that  it  is  the  usage  of  insurance  com- 


v.  Thrasher,  11  Gray,  57;  Bakeman  v. 
Rose,  14  Wend.  105  ;  Magee  v.  State, 
32  Ala.  575;  Orrr.  State,  18  Ark.  540. 

^  See  this  shown  in  Whart.  Cr.  Law, 
§  733  et  seq.^  and  supra,  §  15;  infra, 
§509. 

2  Campbell  v.  Rickards,  4  B.  &  A. 
840;  Rawlins  v.  Desboro,  2  M.  &  Rob. 
329  ;  Bennett  v.  Clemence,  6  Allen, 
10  ;  Cutler  v.  Carpenter,  1  Cow.  81  ; 
Braman  v.  Bingham,  26  N.  Y,  483; 
Rawls  V.  Ins.  Co.  27  N.  Y.  282  ;  First 
Baptist  Church  v.  Ins.  Co.  28  N.  Y. 
153  ;  Fisher  v.  Derbert,  54  Penn.  St. 
460;  Thistle  v.  Frostburg,  10  Md.  129; 
Massure  v.  Noble,  11  111.  531;  White 
V.  Bailey,  10  Mich.  155;  Phelps  v. 
Town,  14  Mich.  374;  Alton  R.  R.  v. 
Northcott,  15  111.49;  Tomlin  t;.  Hil- 
yard,  43  111.  300;  INIcClay  v.  Hedge,  18 
Iowa,  66;  Parker  v.  Haggerty,  1  Ala. 
632;  Wall  v.  Williams,  11  Ala.  826; 
Dunlap  V.  Hearn,  37  Miss.  471;  Young 
V.  Power,  41  Miss.  197;  Zeringue  v. 
White,  4  La.  An.  301;  Garrett  v.  State, 
6  Mo.  1;  Lindauer  v.  Ins.  Co.  13  Ark. 
461  ;  Winters.  Stock,  29  Cal.  407. 

8  R.    V.    Richards,  1   F.  &  F.  87; 

480 


Joyce  V.  Ins.  Co.  45  Me.  168;  Peter- 
son V.  State,  47  Ga.  524;  State  v. 
Klinger,  46  Mo.  224. 

*  Short  Mt.  Coal  Co.  v.  Hardy,  114 
Mass.  191;  Prov.  Tool  Co.  v.  Man. 
Co.  120  Mass.  35. 

6  Fairchild  v.  Bascomb,  35  Vt.  398; 
Walker  v.  Walker,  34  Ala.  469. 

6  Marshall  v.  Ins.  Co.  7  Post.  (N. 
H.)  157;  S.  C.  Bennett's  Ins.  Cas. 
634;  Luce  v.  Ins.  Co.  105  Mass.  298; 
Jefferson  Ins.  Co.  v.  Cotheal,  7  Wend. 
72  ;  Hill  V.  Ins.  Co.  2  Mich.  476  ;  S. 
C.  Bennett's  Ins.  Cas.  325 ;  though 
see  Schenck  v.  Ins.  Co.  4  Zabr.  447; 
Kern  u.  Ins.  Co.  40  Mo.  19;  Arnould 
on  Ins.  571. 

In  Hill  V.  Lafayette  Insurance  Co.  2 
Mich.  476,  Wing,  P.  J.,  said:  "But 
in  reference  to  this  class  of  cases,  it 
appears  to  be  unsettled,  both  in  Eng- 
land and  in  the  United  States,  whether 
witnesses  can  be  receivable  to  state 
their  views  in  relation  to  the  materi- 
ality of  facts  withheld  from  insurers, 
at  the  time  of  the  execution  of  the  pol- 
icy. The  following  cases  are  opposed 
to  the  reception  of  such  evidence  :  3 


CHAP.  VIII.J 


WITNESSES  :   OPINION. 


[§  507. 


panies  to  charge  a  higher  rate  for  certain  conditions.^     "  Law," 


Burrow  R.  1905;  1  Holt  N.  P.  243;  5 
Barn.  &  Adolphus,  840 ;  2  M.  &  W. 
267.  The  following  cases  favor  its 
reception:  1  Arnould  on  Ins.  571  ;  2 
Starkie's  R.  229;  4  B.  &  P.  151;  4 
East,  590;  10  B.  &  C.  527;  lOBing.  57. 
"  In  this  country,  the  following 
cases  are  opposed  to  such  evidence  : 
2  Green.  Ev.  sec.  397  ;  1  lb.  sec. 441; 
7  Wend.  72;  17  lb.  137,  164;  4  De- 
nio,  311 ;  23  Wend.  425.  In  favor  of 
its  admission  are  Kent's  Com.  vol.  3, 
p.  484,  in  note ;  Duer  on  Insurance, 
683,  684,  and  note,  page  780. 

"Mr.  Smith,  in  his  Leading  Cases, 
vol.  1,  pages  544,  545  (Am.  edition, 
by  Hare  &  Wallace),  after  citing  and 
discussing  all  the  English  cases  upon 
this  point,  remarks,  that  '  such  being 
the  state  of  the  authorities,  the  ques- 
tion of  admissibility  can  be  hardly, 
even  now,  considered  as  settled.  The 
difference  is,  however,  perhaps  less 
upon  any  point  of  law,  than  on  the 
application  of  the  settled  law  to  cer- 
tain states  of  facts;  for,  on  the  one 
hand,  it  appears  to  be  admitted  that 
the  opinion  of  witnesses  possessing 
peculiar  skill  is  admissible  whenever 
the  subject  matter  of  inquiry  is  such 
that  inexperienced  persons  are  un- 
likely to  prove  capable  of  forming  a 
correct  judgment  upon  it  without  such 
assistance  ;  in  other  words,  when  it  so 
far  partakes  of  the  nature  of  a  science 
as  to  retjuire  a  course  of  previous  habit 
or  study,  in  order  to  the  attainment  of 
a  knowledge  of  it ;  while,  on  the  other 
hand,  it  does  not  seem  to  be  intended 
that  the  opinion  of  witnesses  can  be 
received  when  the  inquiry  is  into  a 
subject  matter,  the  nature  of  which  is 


not  such  as  to  require  any  particular 
habits  or  study  in  order  to  qualify  a  man 
to  understand  it.  The  author  proceeds : 
'  Now  the  question  of  materiality  in  an 
assurance  seems  one  which  may  possi- 
bly happen  to  fall  within  either  of  the 
above  two  classes;  for  it  is  submitted 
that  it  may  happen  in  cases  of  sea 
policies  that  a  communication,  the  ma- 
teriality of  which  is  in  question,  may 
be  one  respecting  the  importance  of 
which  no  one,  except  an  underwriter, 
can  in  all  probability  form  a  correct 
conclusion.' 

"  Let  us  apply  these  principles  to 
this  case.  The  witness^es  state  that 
the  fact  of  a  '  pending  litigation  was 
material  to  the  risk ; '  the  reason  given 
is,  that  '  if  known  to  the  insurer,  it 
would  have  increased  the  premium,  or 
led  to  a  total  objection  of  the  risk,  be- 
cause the  assured  might  be  tempted 
to  fire  his  own  building,  or  neglect 
it,'  &c. 

"  It  appears  to  me  that  the  reason 
given  by  these  witnesses  shows  that  it 
is  not  a  question  of  science  or  skill,  or 
which  requires  peculiar  habits  or  ex- 
perience to  enable  a  person  to  perceive 
or  understand  it.  It  is  a  mere  deduc- 
tion of  reason  from  a  fact,  founded  on 
the  common  experience  of  mankind, 
that  a  man  may  be  tempted  to  do 
wrong,  when  placed  in  circumstances 
where  his  cupidity  may  be  excited.  A 
jury  does  not  need  evidence  to  con- 
vince them  that  this  may  be  tlie  effect. 
As  well  might  a  court  reieive  the  evi- 
dence of  judges  and  ollicers  of  court 
against  a  man  indicted  for  a  crime, 
that  men  generally  act  as  the  prisoner 
is  charged  to  have  done  wiien  placed 


1  Mulry  V.    Ins.  Co.  5  Gray,  541;  noc  Co.  17  Conn.  249;  Buffum  v.  Har- 

Lyman  u.  Ins.  Co.  14  Allen,  329;  Hart-  rls,   5  11.   I.  243;    Clegg  v.   Fields,  7 

man  v.  Ins.  Co.  21  Pcnn.  St.  466.    As  Jones  L.  (N.  C.)  37.     Supra,  §  444. 
to  parallel  cases,  see  Porter  v.  Pequon- 

VOL.  I.  31  481 


§  509.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


in  the  sense  here  used,  embraces  whatever  conclusions  belong 
properly  to  the  court.  Thus  it  is  inadmissible,  so  has  it  been 
ruled  in  New  Hampshire,  for  a  witness  to  define  the  meaning  of 
the  term  "  minister  of  the  congregational  persuasion."  ^  Nor  can 
a  witness  give  conclusions  as  to  documents  which  it  is  the  prov- 
ince of  the  court  to  interpret.^ 

§  508.  A  witness,  also,  is  not  to  be  permitted  to  testify  as  to 
Conciu-  ^^^  motives  by  which  another  person  is  or  has  been 
actuated.  Motives  are  eminently  inferences  from  con- 
duct. The  facts  from  which  the  inferences  are  to  be 
drawn  are  to  be  detailed  by  the  witnesses ;  for  the  jury 
the  work  of  inference  is  to  be  reserved.^  Yet  where  a 
party  is  examined  as  to  his  own  conduct,  he  may  be  asked  as 
to  his  motive,  his  testimony  to  such  motive  being  based  not  on 
inference  but  on  consciousness.* 

§  509.  So  also  as  to  the  witness's  opinion.     It  is  true  that  we 


sions  of 
witness  as 
to  motives 
of  other 
persons  in- 
admissible 


under  the  like  temptation  and  circum- 
stances. A  bare  suggestion  to  the 
jury,  of  the  very  well  understood  con- 
nection between  such  a  condition  of 
things  and  its  ordinary  result,  would 
enable  them  to  apprehend  the  matter 
in  all  its  bearings,  and  it  would  not 
need  the  testimony  of  witnesses  to 
guide  their  minds  to  a  proper  conclu- 
Bion  as  to  its  effects  upon  the  risk.  It 
is  a  matter  addressed  to  the  jury, 
which  they  must  decide,  and  the  evi- 
dence, whatever  it  may  be,  is  not  con- 
clusive upon  them.  Arnould  on  In- 
surance, 442  ;  2  Greenleaf's  Ev.  sec. 
378;  lib.  sec.  441.  Here  the  witnesses 
swear  that  the  fact  disclosed  *  would 
have  increased  the  risk,'  &c.  This, 
the  jury  is  to  determine  under  all  the 
circumstances  of  the  case." 

1  Dublin  case,  38  N.  H.  459. 

a  Infra,  §  972. 

•  Zantzinger  v.  Weightman,  2 
Cranch  C.  C.  478 ;  Whitman  t;. 
Freeze,  23  Me.  185;  State  r.  Mairs, 
1  Coxe,  453;  Ballard  v.  Lockwood,  1 
Daly,  158;  Shepherd  v.  Willis,  19  Oh. 
142;  Gilman  v.  Riopelle,  18  Mich. 
482 


145;  State  V.  Garvey,  11  Minn.  154; 
Hudgins  v.  State,  2  Ga.  173;  Hawkins 
V.  State,  25  Ga.  207;  Peake  u.  Stout,  8 
Ala.  647;  Clement  v.  Cureton,  36  Ala. 
120. 

4  Supra,  §  482;  Quimby  v.  Morrill, 
47  Me.  470;  Fisk  v.  Chester,  8  Gray, 
506;  Lombard  v.  Oliver,  7  Allen,  155; 
Forbes  v.  Waller,  25  N.  Y.  430;  Persse 
V.  Willett,  1  Rob.  N.  Y.  131;  though 
see  Thornton  v.  Thornton,  39  Vt.  122; 
Haywood  v.  Foster,  16  Oh.  88. 

"  The  plaintiff,  being  by  law  a  com- 
petent witness,  was  rightly  allowed  by 
law  to  testify  to  any  fact  which  had 
a  bearing  on  the  issue  before  the  jury. 
Inasmuch  as  the  defendant  sought  to 
impeach  the  plaintiff's  conveyance  to 
his  wife  on  the  ground  that  it  was 
made  with  a  fraudulent  purpose,  an 
inquiry  into  his  intentions  and  motives 
in  making  the  grant  to  her  was  rele- 
vant and  material.  The  interrogatory 
put  to  him  on  this  subject  was  there- 
fore competent,  and  his  testimony,  that 
he  executed  the  conveyance  in  good 
faith,  was  admissible."  Bigelow,  C.  J., 
Thacher  v.  Phinney,  7  Allen,  148. 


CHAP.  VIII.]  WITNESSES  :    OPINION.  [§  509. 

here  strike  a  topic  which  is  embarrassed  by  much  ambiguity 
of  terms.  What  is  opinion?  "Did  A.  shoot  B.  ?  "  opinion  f 
C,  a  bystander,  answers,  "  My  opinion  is  that  he  did  :  witness 
I  saw  the  pistol  aimed  ;  I  heard  the  report ;  I  saw  the  ordinarily 
flash ;  I  saw  B.  fall  down,  as  I  supposed,  dead ;  from 
all  this  I  infer  that  A.  killed  B."  This  is  all  inference  on 
the  part  of  the  witness  ;  yet  it  is  admissible.^  On  the  other 
hand  it  has  been  held  inadmissible  to  ask  a  witness  as  to  his 
opinion  as  to  who  constitute  the  membership  of  a  firm  ;  ^  or  as  to 
whether  a  certain  physician  had  acted  honorably  towards  his 
professional  brother  ;  ^  or  as  to  what  is  a  reasonable  load  for  a 
horse  ;  ^  or  as  to  the  effect  of  particular  charges  in  an  account ;  ^ 
or  as  to  the  effect  of  certain  acts  on  the  credit  of  a  firm  ;  ^  or  as 
to  the  probable  effect  of  certain  acts  in  saving  a  burning  house ;  ^ 
or  as  to  the  religious  sense  of  a  dying  declarant ;  ^  or  as  to  the 
conjectural  losses  of  certain  business  operations ;  ^  or  as  to 
whether  the  condition  of  a  third  person  indicates  disease.^*'  Nor 
can  a  witness  be  asked  whether  he  did  not  exercise  great  care  in 
the  discharge  of  a  certain  duty  ;  ^^  as  to  whether  a  particular  al- 
teration of  machinery  was  technically  a  repair  ;  ^^  ^s  to  whether 
a  certain  person  acted  fairly  ;  ^^  as  to  whether  a  certain  religious 
denomination  had  a  particular  creed,  but  had  departed  from  it ;  ^* 
,as  to  whether  an  engine  appeared  capable  of  drawing  a  train ;  ^^ 
as  to  whether  a  certain  bridge  was  safe  ;  ^^  as  to  whether  certain 
conduct  indicated  adultery  ;  i"  as  to  whether  a  certain  disorderly 
house  was  a  nuisance ;  ^^  as  to  whether  a  certain  person's  conduct 

1  See  Wliart.   Cr.  Law,  7th  ed.  §  ^o  Ashland  y.  Marlboro,  99  Mass.  47;. 
733.     See  supra,  §§  8,  15.  though  in  Parker  i'.  St.  Co.  109  Mass. 

2  Bonfiold  V.  Smith,  12  M.  &  W.  506,  it  was  held  that  a  non-expert 
405;  Williams  v.  Soutter,  7  Iowa,  435;  could  testify  as  to  another's  probable 
Atwood  V.  Meredith,  37  Miss.  635.  health. 

'  Ramadge  v.  Ryan,    9  Ring.  333;         "  Bryant  v.  Glidden,  89  Me.  458. 
though  see  Greville  v.  Chapman,  5  Q.         12  Bigelow  v.  Collamore,  5  Cush.  226. 
B.  731,  a  case  of  doubtful  authority.  "  Zautzingcr     v.    Weightman,     2 

*  Oakes  v.  Weston,  45  Vt.  430.  Cranoh  C.  C.  4  78. 

6  U.  S.  V.  Willard,  1  Paine,  539.  "  Happy  v.  Morton,  33  111.  398. 

«  Donnell   v.    Jones,    13    Ala.  490;         "  Sisson  r.  R.  R.  14  Mich.  489. 
Thomas  v.  Isett,  1  Greene,  470.  "  Crane  v.  Northficld,  33  Vt.  124. 

'  Gibson  V.  Ilatchett,  24  Ala.  201.  "  Cameron  i'.   State,  14  Ala.  546; 

8  State  V.  Brunetto,  13  La.  An.  45.  Co.x  i;.  Whitfield,  18  Ala.  738. 

«  Rider  v.  Ins.  Co.  20  Pick.  259.  "  Smith  v.  Com.  6  B.  Monr.  21. 

483 


510.] 


THE  LAW   OF  EVIDENCE. 


[book  II. 


would  have  particular  effects ;  ^  as  to  whether  certain  language 
would  have  particular  effects ;  ^  as  to  whether  certain  conduct  was 
negligent,  or  otherwise  ;  ^  as  to  whether  certain  conduct  was 
honest ;  *  as  to  whether  a  deed  was  unduly  influenced ;  ^  as  to 
whether  a  certain  jsarty  was  insolvent ;  ^  as  to  whether  a  certain 
house  was  a  suitable  residence  for  a  particular  person  ; "  as  to 
whether  a  gate  of  a  drawbridge  should  be  shut  at  night ;  ^  as  to 
whether  certain  injuries  could  have  been  avoided  ;  ^  as  to  whether 
a  certain  floating  dock  was  seaworthy  ;i^  or  as  to  whether  certain 
articles  were  proper  for  a  minor. ^^ 

§  510.  The  true  line  of  distinction  is  this  :  an  inference  neces- 
sarily involving  certain  facts  may  be  stated  without  the  facts,  the 
inference  being  an  equivalent  to  a  specification  of  the  facts  • 
but  when  the  facts  are  not  necessarily  involved  in  the  inference 
(e.  g.  when  the  inference  may  be  sustained  upon  either  of  several 
distinct  phases  of  fact,  neither  of  which  it  necessarily  involves), 
then  the  facts  must  be  stated.^^    Jn  other  words,  when  the  opinion 


^  Richards  v.  Richards,  37  Penn. 
St.  225. 

"  Johnson  v.  Ballew,  2  Porter,  29. 

8  Crofut  V.  Ferry  Co.  36  Barb.  201; 
Teall  V.  Barton,  40  Barb.  137;  Otis 
V.  Thorn,  23  Ala.  469;  Taylor  v. 
Monnot,  4  Duer,  116;  Livingston  v. 
Cox,  8  Watts  &  S.  61.  See  Penn.  R. 
V.  Henderson,  51  Penn.  St.  315. 

*  Johnson  v.  State,  35  Ala.  370. 

6  Dean  v.  Fuller,  40  Penn.  St.  474. 

«  Nuckolls  V.  Pinkston,  38  Ala. 
615;  Babcock  v.  Bank,  28  Conn.  302; 
though  see  Sherman  v.  Blodgett,  28 
Vt.  149  ;  Crawford  v.  Andrews,  6  Ga. 
244;  Riggins  r.  Brown,  12  Ga.  271; 
Royall  V.  McKenzie,  25  Ala.  363. 

'  Dallas  V.  Sellers,  17  Ind.  479. 

8  Nowell  V.  Wright,  3  Allen,  166. 

9  Winters  v.  R.  R.  39  Mo.  468. 
See  Patterson  v.  Colebrook,  29  N.  H. 
94. 

"  Marcy  r.  Ins.  Co.  11  La.  An. 
748. 

11  Merritt  v.  Seaman,  6  N.  Y.  168. 

"  Lime  Rock  Bk.  v.  Hewett,  50 
Me.  267;  Robertson  v.  Stark,  15  N. 
484 


H.  109;  Kingsbury  v.  Moses,  45  N. 
H.  222 ;  Spear  v.  Richardson,  34  N. 
H.  428  ;  Lester  v.  Pittsford,  7  Vt.  161  ; 
Frazer  v.  Tupper,  29  Vt.  409;  Bank  of 
Middlebury  v.  Rutland,  33  Vt.  414; 
Dickinson  i;.  Barber,  9  Mass.  225  ;  Ro- 
binson V.  R.  R.  7  Gray,  92;  Lewis  v. 
Ins.  Co.  10  Gray,  508  ;  Carpenter  v. 
Leonard,  3  Allen,  32  ;  Bliss  v.  Wil- 
braham,  8  Allen,  564;  Morse  v.  State, 
6  Conn.  9  ;  Gibson  v.  Williams,  4 
Wend.  320  ;  Paige  v.  Hazard,  5  Hill 
(N.  Y.)  603  ;  Moorehouse  v.  Mathews, 
2  Comst.  514 ;  Cook  v.  Brockway,  21 
Barb.  331;  Strevel  v.  Hempstead,  44 
Barb.  518;  Given  v.  Albert,  5  Watts 
&  S.  333;  Woodburn  f.  Bank,  5  Watts 
&  S.  447;  Leckey  v.  Bloser,  24  Penn. 
St.  401 ;  Bank  of  U.  S.  v.  Macalester, 
9  Penn.  St.  475  ;  Carr  v.  Northern 
Liberties,  35  Penn.  St.  324  ;  Stanfield 
V.  Phillips,  78  Penn.  St.  73;  U.  S. 
Telegraph  Co.  v.  Wenger,  56  Penn. 
St.  262  ;  Law  v.  Scott,  5  Har.  &  J. 
438 ;  Mahoney  v.  Ashton,  4  Har.  & 
M.  63  ;  Elbin  v.  Wilson,  33  Md.  135  ; 
Cincinnati  Ins.  Co.  v.  May,  20   Ohio, 


CHAP.  VIII.] 


WITNESSES:    OPINION. 


[§  511. 


is  the  mere  short-hand  rendering  of  the  facts,  then  the  opinion 
can  be  given,  subject  to  cross-examination  as  to  the  facts  on 
which  it  is  based.^ 

§  511.  A  fortiori  whenever  a  condition  of  things  is  such  that 
it  cannot  be  reproduced  and  made  palpable  in  the  concrete  to  the 


211;  Adams  v.  Funk,  53  El.  219;  Wil- 
liams V.  Dewitt,  12  Ind.  309;  Daniels 
V.  Mosher,  2  Mich.  183;  Evans  v.  Peo- 
ple, 12  Mich.  27;  Whittemore  r.  Weiss, 
33  Mich.  348;  Wilson  v.  Maddock,  5 
Oregon,  480;  U.  S.  Ex.  Co.  v.  Anthony, 
5  Kans.  490 ;  Shepard  v.  Pratt,  16 
Kans.  209;  Bailey  v.  Poole,  13  Ire.  L. 
404;  Bell  v.  Morrisett,  6  Jones  L.  178; 
Mealing  v.  Pace,  14  Ga.  596  ;  Inglehart 
r.  State,  16  Ga.  513  ;  Keener  r.  State, 
18  Ga.  194;  South.  Life  Ins.  Co.  v. 
Wilkinson,  53  Ga.  535;  Parker  v. 
Chambers,  24  Ga.  518;  Hook  v.  Sto- 
vall,  30  Ga.  418;  Massey  v.  Walker, 
10  Ala.  288;  Cameron  v.  State,  14 
Ala.  546 ;  Saltmarsh  v.  Bower,  34 
Ala.  613  ;  Gregory  v.  Walker,  38  Ala. 
26;  Hall  v.  State,  40  Ala.  698;  Coop- 
er V.  State,  23  Tex.  331. 

"  As  a  rule,  witnesses  must  state 
facts,  and  not  draw  conclusions  or 
give  opinions.  It  is  the  duty  of  the 
jury  or  court  to  draw  conclusions  from 
the  evidence,  and  form  opinions  upon 
the  facts  proved.  The  cases  in  which 
opinions  of  witnesses  are  allowable, 
constitute  exceptions  to  the  general 
rule,  and  the  exceptions  are  not  to  be 
extended  or  enlarged,  so  as  to  include 
new  cases,  except  as  a  necessity  to 
prevent  a  failure  of  justice,  and  when 
better  evidence  cannot  be  had.  On 
questions  of  science  or  trade,  and  the 
like,  persons  of  skill  and  science,  ex- 
perts in  the  particular  science  or  trade, 
may  give  opinions.  1  Greenl.  Evid. 
§  440  ;  1  Phil.  Ev.  290.  On  questions 
of  value,  a  witness  must  often  be  per- 
mitted to  testify  to  an  opinion  as  to 
value,  but  the  witness  must  be  shown 
competent  to  speak  upon  the  subject. 


He  must  have  dealt  in,  or  have  some 
knowledge  of,  the  article  concerning 
which  he  speaks.  C.  &  H.  Notes, 
760,  Note  529.  Persons  should  be 
conversant  with  the  particular  article, 
and  of  its  value  in  the  market,  as  a 
farmer  or  a  dealer,  or  a  person  con- 
versant with  the  article,  as  to  the 
value  of  lands,  cattle,  produce,  &c. 
These  stand  upon  the  general  ground 
of  peculiar  skill  and  judgment  in  the 
matters  about  which  opinions  are 
sought.  Per  Nelson,  Ch.  J.,  Lincoln 
V.  Schenectady  &  Saratoga  R.  R.  Co. 
23  W.  R.  433  ;  Brill  v.  Flagler,  23 
Wend.  354  ;  Norman  v.  Wells,  17 
Wend.  136  ;  Lamoure  v.  Caryl,  4 
Denio,  370. 

"It  is  not  permitted  to  give  in  evi- 
dence the  opinion  of  witnesses  having 
knowledge  of  the  subject,  as  to  the 
damages  resulting  from  a  particular 
transaction.  Morehouse  v.  Mathews, 
2  Comstock,  514;  Lincoln  v.  R  R.  Co. 
supra."  Allen,  J.,  Teerpenning  v. 
Insurance  Co.  43  N.  Y.  281. 

1  Taylor  v.  R.  R.  48  N.  H.  304  ; 
Sherman  r.Blodgett,  28  Vt.  149  ;  Par- 
sons V.  Ins.  Co.  16  Gray,  463  ;  Clear- 
water V.  Brill,  61  N.  Y.  625  ;  Ardesco 
V.  Gilson,  63  Penn.  St.  146  ;  Sorg  v. 
Congregation,  63  Penn.  St.  156 ;  King  v. 
Fitch,  2  Abb.  (N.  Y.)  App.  .^)0S;  Selden 
V.  Bank,  3  Minn.  166;  Montgomery 
V.  Scott,  34  Wise.  338;  Lewis  v.  State, 
49  Ala.  1 ;  Avary  r.  Searcy.  50  Ala. 
54;  Ray  v.  State,  50  Ala.  1(>4  ;  Sparr 
V.  Wellman,  11  Mo.  230;  Sayfarth  v. 
St.  Louis,  52  Mo.  449;  State  r.  Fol- 
well,  14  Kans.  110.  See  Chicago  v. 
Greer,  9  Wall.  726. 

485 


§  612.] 


THE  LAW   OF  EVIDENCE. 


[book  II. 


jury,  or  when  language  is  not  adequate  to  such  realization,  then 
a  witness  may  describe  it  by  its  effect  on  his  mind,  even  though 
such  effect  be  opinion.^  Eminently  is  this  the  case  with  regard 
to  noises  ;  ^  and  smells,'^  and  to  questions  of  identification,  where 
a  witness  is  allowed  to  speak  as  to  his  opinion  or  belief.* 

§  512.  So  an  opinion  can  be  given  by  a  non-expert  as  to  matters 
with  which  he  is  specially  acquainted,  but  which  cannot  be  specif- 
ically described.^  Thus  a  witness  has  been  permitted  to  testify 
that  certain  parties  were  attached  to  each  other ;  ^  that  a  culvert 
was  "  steep  right  down,  a  culvert  that  I  thought  a  dangerous 
place ; "  "*  that  an  engine  was  running  at  an  estimated  speed  ;^  that 
a  third  person  was  sick  or  disabled  ;  ^  that  a  third  person  was 
responsible  for  his  debts  ;  ^^  that  a  horse  appeared  unwell  or  un- 
sound, or  was  or  was  not  diseased ;  ^^  that  a  cow  was  in  good 
condition ;  ^^  that  certain  pictures  were  good  likenesses  ;^^  that  cer- 


1  Com.  V.  Sturtivant,  117  Mass.  122; 
Safford  v.  Grout,  120  Mass.  20;  Com. 
V.  Pipei-,  120  Mass.  18G;  Kearney  v. 
Farrell,  28  Conn.  317;  Peoples.  East- 
wood, 14  N.  Y.  562;  Townsend  v. 
Brundage,  6  Thomp.  &  C.  (N.  Y.) 
627;  Dubois  v.  Baker,  40  Barb.  556; 
Brennan  v.  People,  15  111.  Ill  ;  State 
V.  Langford,  Busbee  (L.),  436  ;  Wood- 
ward V.  Gates,  38  Ga.  205 ;  Patrick  v. 
The  Adams,  19  Mo.  73;  Eyerman  v. 
Sheehan,  52  Mo.  221  ;  Albright  v. 
Corley,  40  Tex.  105;  Underwood  v. 
Waldron,  33  Mich.  232. 

2  State  V.  Shinborn,  46  N.  H.  497  ; 
Leonard  v.  Allen,  11  Cush.  241,  where 
the  meaning  of  tones  of  voice  and  gest- 
ures was  asked.  See,  however,  Har- 
denburg  v.  Cockroft,  5  Daly,  79,  where 
it  was  said  a  witness  could  not  be  asked 
as  to  how  far  a  voice  could  be  heard. 

8  Kearney?'.  Farrell,  28  Conn.  317. 
See  Max  Miiller's  Lectures  on  Lan- 
guage, vol.  ii.  Lect.  1. 

*  Fryer  v.  Gathercole,  13  Jur.  542; 
R.  V.  Orton,  Pamph.  Trial  ;  State  v. 
Pike,  49  N.  H.  398;  Com.  v.  Pope, 
103  Mass.  446  ;  Powell's  Evidence 
(4th  ed.),  102. 

486 


6  Kearney  17.  Farrell,  28  Conn.  317; 
Bennett  v.  Fail,  26  Ala.  605;  Cole  v. 
Varner,  31  Ala.  244  ;  Innis  v.  The 
Senator,  4  Cal.  5. 

^  Trelawney  v.  Colman,  2  Stark.  R. 
192;  Robertson  v.  Stark,  15  N.  H. 
114;  McKee  v.  Nelson,  4  Cow.  355. 

"^  Lund  V.  Tyngsboro,  9  Cush.  36. 

8  Detroit  R.  R.  v.  Van  Steinburg, 
17  Mich.  99. 

9  State  t;.  Knapp,  45  N.  H.  148-9; 
Whittier  v.  Franklin,  46  N.  H.  23  ; 
Norton  v.  Moore,  3  Head,  480;  Brown 
V.  Lester,  Ga.  Dec.  Part  L  77;  IVIil- 
ton  r.  Rowland,  11  Ala.  732;  Autauga 
Co.  V.  Davis,  32  Ala.  703;  Barker  v. 
Coleman,  35  Ala.  221;  Stone  v.  Wat- 
son, 37  Ala.  279;  Elliott  v.  Van  Bu- 
ren,  33  Mich.  49;  Endicott,  J.,  Com. 
V.  Sturtivant,  119  Mass.  132. 

10  Blanchard  v.  Mann,  1  Allen,  433. 
"  Willis  V.  Quimby,  31  N.  H.  485; 

Spear  v.  Richardson,  34  N.  H.  428; 
State  V.  Avery,  44  N.  H.  392;  Johnson 
V.  State,  37  Ala.  457.  See  these  cases 
approved  in  Pike  v.  State,  49  N.  H. 
426. 

^2  Joy  V,  Hopkins,  5  Denio,  84. 

"  Barnes  v.  Ingalls,  39  Ala.  193. 


CHAP.  VIII.] 


WITNESSES  :   OPINION. 


[§  512. 


tain  hairs  on  a  club  appeared  to  the  naked  eye  human,  and  to 
resemble  the  hair  of  the  deceased  ;  ^  that  a  certain  substance  was 
"  hard  pan ;  "  ^  that  certain  distances  or  weights  were  to  be  esti- 
mated in  a  particular  way  ;  ^  that  certain  persons  were  insane,  or 
drunk,  or  otherwise  ;  ^  that  certain  obviously  dangerous  wounds 
caused  death  ;  ^  that  a  liquor  looked  like  whiskey  ;  ^  that  a  color 
was  of  a  certain  hue  ;  "^  that  a  certain  place  was  a  "  mill-site  ;  "  ^ 
that  another  person  "  acted  as  if  she  felt  very  sad  ;  "  ^  that  the 
weather  was  cold  enough  to  freeze  potatoes  ;  ^^  that  the  ap- 
pearance of  a  blood-stain  indicated  the  spurt  came  from  below, 
though  the  witness  had  never  experimented  with  blood  or  other 
fluid  in  this  relation.^^  So,  as  a  general  rule,  "  duration,  distance, 
dimension,  velocity,  &c.,  are  often  to  be  proved  only  by  the 
opinion  of  witnesses,  depending  as  they  do  upon  many  minute 
circumstances  which  cannot  fully  be  detailed."  ^^ 


1  Com.  V.  Dorsey,  103  Mass.  413. 

2  Currier  v.  R.  R.  34  N.  H.  498. 

8  Hackett  v.  R.  R.  35  N.  H,  390; 
Eastman  v.  Amoskeag  Co.  44  N.  H. 
143;  Fulsome  V.  Concord,  46  Vt.  135; 
Campbell  v.  State,  23  Ala.  44;  Rawles 
V.  James,  49  Ala.  183. 

*  See  supra,  §  45;  Gahagan  v.  R. 
R.  1  Allen,  187;  People  r.  Eastwood, 
14  N.  Y.  562;  Stanley  v.  State,  26 
Ala.  26. 

s  State  V.  Smith,  22  La.  An.  468. 

'  Com.  V.  Dowdican,  114  Mass. 
257. 

'  Com.  V.  Owens,  114  Mass.  252. 

8  Clagett  V.  Easterday,  42  Md.  617. 

®  Culver  V.  Dwight,  6  Gray,  444. 

"  Curtis  V.  R.  R.  18  Wise.  312. 

Ji  Com.  V.  Sturtivant,  119  Mass. 
132,  where  the  question  is  discussed 
with  comprehensive  ability  by  Endi- 
cott,  J. 

^2  Kingman,  C.  J.,  State  i'.  Folwell, 
14  Kans  110;  citing  Poole  v.  Richard- 
son, 3  Mass.  330.  See,  also.  Com.  v. 
Malone,  114  Mass.  295. 

"  While  it  is  the  general  rule  that 
the  opinions  of  witnesses  are  not  evi- 
dence, there  are  certain  classes  of  ex- 


ceptions to  it,  in  which  such  opinions 
are  admissible  in  connection  with  facts 
testified  to,  on  which  they  are  founded. 
Certain  instances  of  such  exceptions 
are  noticed  in  the  following  decisions 
made  by  this  court :  In  Porter  i;.  Pe- 
quonnoc  Manufacturing  Co.  17  Conn. 
249,  the  question  was  whether  a  cer- 
tain dam  was  capable  of  sustaining 
the  water  accumulated  by  it  suddenly 
in  time  of  a  freshet.  Upon  that  jioint 
the  court  received  the  opinions  of  wit- 
nesses who  had  no  peculiar  skill  in  the 
mode  of  constructing  dams,  but  who 
were  acquainted  with  the  stream  and 
who  knew  the  height  of  the  dam  and 
depth  of  the  pond.  The  court  said  : 
'  The  judgment  or  opinion  of  these 
witnesses,  as  practical  and  observing 
men,  was  sought  on  this  point,  on  the 
facts  within  their  knowledge  and  to 
which  they  testified.  They  had  ac- 
quired, by  their  pi-rsonal  ol)servation, 
a  knowledge  of  tiie  ch.iracter  of  the 
stream  and  also  of  the  dam.  and  were 
therefore  peculiarly  qualified  to  de- 
termine whether  tlic  latter  was  suffi- 
ciently strong  to  withstand  the  former. 
The  opinions  of  such  persons  u|)on  a 

487 


§  513.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


§  513.  In   fine,  in  addition  to   the   rule   already   given   that 
opinion  is  admissible  when  it  is  fact  in  short-hand,  it  is  not  nec- 

question  of  this  description,  although 
possessing  no  peculiar  skill  on  the  sub- 
ject, would  ordinarily  be  more  satis- 
factory to  the  minds  of  the  triers  than 
those  of  scientific  men  who  were  per- 
sonally unacquainted  with  the  facts  in 
the  case  ;  and  to  preclude  them  from 
giving  their  opinion  on  the  subject,  in 
connection  with  the  facts  testified  to 
by  them,  would  be  to  close  an  ordi- 
nary  and  important   avenue    to    the 

truth On  such  a  question 

the  judgment  of  ordinary  persons, 
having  an  opportunity  of  personal  ob- 
servation, and  testifying  to  the  facts 
derived  from  that  observation,  was 
equally  admissible,  whatever  compar- 
ative weight  their  opinions  might  be 
entitled  to,  of  which  it  would  be  for 
the  jury  to  judge.  It  was  a  question 
of  common  sense  as  well  as  of  science.' 
In  Dunham's  Appeal  from  Probate,  27 
Conn.  192,  this  court  said:  '  We  never 
allow  the  mere  opinion  of  the  witness 
to  go  to  the  jury  if  objected  to,  unless 
the  witness  is  an  expert  and  testifies 
as  such,  where  the  jury,  from  want  of 
experience  or  observation,  are  unable 
to  draw  proper  inferences  from  facts 
proved.  But  where  a  witness  speaks 
from  his  personal  knowledge,  and, 
after  stating  the  facts,  adds  his  opin- 
ion upon  them,  or  in  a  certain  class  of 
cases  gives  his  opinion  without  detail- 
ing the  facts  on  which  it  is  founded, 
his  testimony  is  received  as  founded, 
not  on  his  judgment,  but  on  his  knowl- 
edge  So,  a  witness  may 

state  that  a  certain  road  is  or  is  not 
in  repair,  or  that  a  certain  bridge  is 
Bound  and  safe  or  otherwise,  or  that  a 
farm  or  horse  is  worth  so  much,  with- 
out going  into  the  particular  facts  on 
which  he  founds  his  opinion,  these 
facts  being  known  to  him  personally. 
He  only  states  the  result  of  his  own 

488 


observation  and  knowledge.'  "  Clin- 
ton V.  Howard,  42  Conn.  30G,  307. 
Pardee,  J. 

In  Hardy  v.  Merrill,  decided  by  the 
supreme  court  of  New  Hampshire,  in 
1875,  8  Am.  Law  T.  Rep.  385,  the 
following  valuable  classification  of  au- 
thorities appears  in  the  opinion  of  the 
court : — 

"  It  is  proper  for  me  to  invite  atten- 
tion to  the  history  of  what  I  have 
called  the  Massachusetts  exception. 
Beginning  with  Poole  v.  Richardson,  8 
Mass.  330  (a.  d.  1807),  we  find  no 
very  wide  departure  from  the  general 
rule  of  admissibility.  The  case  holds 
that  non-professional  witnesses  may 
'  not  testify  merely  their  opinion  or 
judgment.*  Judge  Doe  (State  v.  Pike, 
p.  410)  suspects  that  '  the  only  point 
ruled  in  this  case  was,  that  the  wit- 
nesses were  allowed  to  give  their  opin- 
ions when  they  stated  particular  facts 
from  which  the  state  of  the  testator's 
mind  was  inferred  by  them.' 

"But  the  exception  grew  and  di- 
lated, finding  larger  and  stronger  ex- 
pressions along  through  the  years  and 
the  course  of  the  cases  of  Hathorn  v. 
King,  8  Mass.  371  ;  Dickinson  v. 
Barber,  9  Mass.  225  ;  Needham  v. 
Ide,  5  Pick.  510  ;  Com.  v.  Wilson,  1 
Gray,  337  ;  down  to  Com.  v.  Fair- 
banks, 2  Allen,  511  (a.  d.  1861),  when 
it  was  held  per  curiam,  '  that  the  in- 
competency of  the  opinions  of  non- 
experts, was  not  an  open  question  in 
Massachusetts ; '  though  Judge  Thomas 
had  recently  said,  in  Baxter  v.  Abbott, 
7  Gray,  79,  that  '  if  it  were  a  new 
question  [he]  should  be  disposed  to 
allow  every  witness  to  give  his  opin- 
ion, subject  to  cross-examination  upon 
the  reasons  upon  which  it  is  based,  his 
degree  of  intelligence,  and  his  means 
of  observation.' 


CHAP,  vm.] 


WITNESSES:    OPINION. 


[§  513. 


essary  for  a  witness  to  be  an  expert,  to  enable  him  to  give  his 
opinion  as  to  a  matter  depending  upon  special  knowledge,  when 

"  In  very  recent  times,  however,  we  objection,  that  the  prisoner,  '  in  con- 
observe  a  more  liberal  disposition  on  versation  and  manner,  evinced  no  re- 
the  part  of  the  Massachusetts  courts,  morse  or  sense  of  guilt.' 
See  Barker  v.  Comins,  110  Mass.  477  "  With  deference  and  great  respect 
(a.  d.  1872)  ;  and  Nash  v.  Hunt,  116  I  may  be  allowed  to  say  that  I  rejoice 
Mass.  237  (a.  D.  1874).  In  the  former  much  more  in  the  results  attained  in 
of  these  cases,  it  was  held  that  per-  these  later  cases  than    in  the  modus 


sons  acquainted  with  the  testator,  al- 
though neither  witnesses  to  the  will 
nor  medical  experts,  may  testify 
whether  they  noticed  any  change  in 
his  intelligence,  and  any  want  of  co- 
herence  in   his   remarks.     Gray,   J., 


ope?-«?iJi  of  judicial  reasoning  by  which 
the  conclusions  were  reached.  They 
indicate  decided  and  accelerating  pro- 
gress of  the  Massachusetts  courts  to 
the  right  direction.  The  full  estab- 
lishment of  the  true  doctrine  there  is 


said  :  '  The  question  did  not  call  for  a  question  of  time  only, 
the  expression  of  an  opinion  upon  the         "A  tolerably  careful  investigation 

question  whether  the  testator  was  of  autliorizes  me  to  repeat  the  language 

sound   or   unsound    mind,  which  the  of  Judge  Doe,  that  '  in  England  no 

witnesses,  not  being  eitlier  physicians  express  decision  of  the  point  can  be 

or  attesting  witnesses,  would  not  be  found,   for  the  reason   that  such  evi- 

competent    to    give.      The     question  dence  has  always  been  admitted  with- 

whether  there  was  an  apparent  change  out  objection.    It  has  been  universally 

in  a  man's  intelligence  or  understand-  regarded  as  so  clearly  competent,  that 

ing,  or  a  want  of  coherency  in  his  re-  it  seems  no  English  lawyer  has  ever 

marks,  is  a  matter  not  of  opinion  but  presented  to  any  court  any  objection, 

of  fact,  as  to  which  any  witness  may  question,    or   doubt   in   regard  to  it.' 

testify,  in  order  to  put  before  the  court  State  v.  Pike,  49  N.  II.  408,  409. 
or    jury  the   acts   and   conduct   from         "  I  presume,  however,  it  will  not  be 

which  the  degree  of  his  mental  capac-  denied  that  in  the  ecclesiastical  courts, 

ity  may  be  inferred.'  where  questions   of   testamentary  ca- 

"  In  Nash  v.  Hunt,  a  witness  was  al-  pacity  are  generally  tried,  such  opin- 


lowed  to  say  he  observed  no  incoher- 
ence of  thought  in  the  testator,  nor 
anything  unusual  or  singular  in  re- 
spect to  his  mental  condition.  Judge 
Wells  saying,  —  '  We  do  not  under- 


ions  have  always  been  received.  See 
1  Gr.  Ev.  (12th  ed.)  sec.  440,  n.  4  ; 
Dow  v.  Clark,  3  Addams,  79;  Wlieeler 
r.  Alderson,  3  Hagg.  574,  where  Sir 
John  Nicholl  said,  in  pronouncing  his 


stand   this  to  be  giving  an  opinion  as    judgment,   '  There  is  a  cloud  of  wit- 


to  the  condition  of  the  mind  itself,  but 
only  of  its  manifestations  in  conversa- 
tion with  the  witness.'  The  witness 
could  state,  '  as  matter  of  observa- 
tion, whether  his  conversation  and  de- 
meanor were  in  the  usual  ami  natural 
manner  of  the  testator  or  otherwise  ; ' 
and  in  Commonwealth  v.  Pomeroy, 
117  Mass.  149,  non-professional  wit- 
nesses were  allowed  to  state,  without 


nesses  who  gave  unlu'sitating  opinions 
that  the  deceased  was  mad.' 

"The  practice  in  the  courts  of  the 
common  law  has  been  universal  and 
unwavering  in  the  same  direction  ; 
and  '  the  number  of  Enijlish  authori- 
ties is  limited  only  by  the  number  of 
fully  reported  cases  in  which  the  ques- 
tion of  sanity  has  been  raised.' 
Sute  V.  Pike,  49  N.  H.  409. 
489 


§  513.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


he  states  the  facts  on  which  he  bases  his  opinion.^     It  is  other- 
wise as  to  matters  concerning  which  the   jury   can   themselves 


"  In  the  year  1800,  James  Hadfield 
was  tried  for  shooting  at  King  George 
III.  The  defence  was  insanity,  and 
the  opinions  of  non-expert  witnesses 
were  freely  admitted;  27  State  Trials, 
1281  et  seq. ;  and  Mr.  Erskine  told  the 
jury  they  '  ought  not  to  be  shaken  in 
giving  full  credit  to  the  evidence  of 
those  who  ....  describe  him  as 
discovering  no  symptoms  whatever  of 
mental  incapacity  or  disorder.'  Ers- 
kine's  Speeches  (3d  London  ed.),  132, 
140. 

"  In  Egleton  v,  Kingston,  8  Ves.  Jr. 
450,  Ann  Boak  and  Elizabeth  Ban- 
son  '  expressed  a  strong  opinion  of  the 
total  incapacity  of  the  deceased,  both 
from  his  great  imbecility  of  mind  and 
the  dominion  .  ...  of  Mrs. 
Kingston  ; '  and  John  Fogg  testified 
that  '  his  faculties  were  very  much 
impaired.' 

"  In  Lowe  v.  Jolliffe,  1  W.  Black. 
365,  the  subscribing  witnesses  to  a  will 
having  sworn  that  the  testator  was 
utterly  incapable  of  making  such  an 
instrument,  to  encounter  this  evidence 
the  plaintiff's  counsel  examined  the 
friends  of  the  testator,  who  strongly 
deposed  to  his  sanity.  . 

"  In  Tatham  v.  Wright,  2  Russ.  & 
Mylne,  Lord  Ch.  Jus.  Tindal,  '  in  be- 
half of  himself  and  the  Lord  Chief 
Baron,'  in  reading  the  judgment  of 
the  court,  commented  upon  the  fact 
that '  on  the  trial  of  this  cause,  for  the 


purpose  of  proving  affirmatively  the 
general  incapacity  of  Mr.  Marsden,  a 
very  large  body  of  parol  evidence  was 
produced  by  the  defendants  in  the 
issue,  comprising  not  fewer  than  sixty- 
one  witnesses  in  number,  some  of 
whom  deposed  to  the  state  of  Mr. 
Marsden's  intellect  and  the  powers  of 
his  mind  in  very  early  life,  and  others 
continued  the  account  down  to  a  pe- 
riod very  shortly  before  his  death  in 
1826. 

"  The  greater  part  of  this  testimony 
came  from  non-professionals,  and  con- 
sisted in  the  expression  of  opinion. 

"  Courts  and  text- writers  all  agree 
that,  upon  questions  of  science  and 
skill,  opinions  may  be  received  from 
persons  specially  instructed  by  study 
and  experience  in  the  particular  art 
or  mystery  to  which  the  investigation 
relates. 

"  But  without  reference  to  any  rec- 
ognized rule  or  principle,  all  concede 
the  admissibility  of  the  opinions  of 
non-professional  men  upon  a  great 
variety  of  unscientific  questions  aris- 
ing every  day,  and  in  every  judicial 
inquiry.  These  are  questions  of  iden- 
tity, handwriting,  quantity,  value, 
weight,  measure,  time,  distance,  ve- 
locity, form,  size,  age,  strength,  heat, 
cold,  sickness,  and  health;  questions, 
also,  concerning  various  mental  and 
moral  aspects  of  humanity,  such  as 
disposition  and  temper,  anger,  fear, 


1  Currier  v.  R.  R.  34  N.  H.  498; 
Richardson  v.  Hitchcock,  28  Vt.  149; 
O'Neill  V.  Lowell,  6  Allen,  110;  Brown- 
ing V.  R.  R.  2  Daly,  117;  Iselin  v. 
Peck,  2  Robt.  (N.  Y.)  629;  Pennsylv. 
R.  R.  V.  Henderson,  51  Penn.  St.  315; 
Dailey  v.  Grimes,  27  Md.  440;  Panton 
V.  Norton,  18  111.  496;  Thomas  v. 
White,  11  Ind.  132;  Indianapolis  v. 
490 


Huffer,  30  Ind.  235  ;  Detroit  R.  R. 
V.  Van  Steinburg,  17  Mich.  19;  Sow- 
ers V.  Dukes,  8  Minn.  23;  Brackett  v. 
Edgerton,  14  Minn.  174;  Cochran  v. 
Miller,  13  Iowa,  128  ;  Barker  i'.  Cole- 
man, 35  Ala.  221 ;  Blackman  v.  John- 
son, 35  Ala.  252 ;  Alabama  R.  R.  v. 
Burkett,  42  Ala.  83  ;  People  v.  San 
ford,  43  Cal.  29. 


CHAP.  VIII.] 


WITNESSES:   OPINION. 


[§  513. 


form   opinions,  in  which   cases  witnesses  cannot  state  opinions 


excitement,  intoxication,  veracity,  gen- 
eral character,  and  particular  pliases 
of  character,  and  other  conditions  and 
things,  both  moral  and  physical,  too 
numerous  to  mention.  See,  in  addi- 
tion to  the  American  cases  cited  by 
Judge  Doe,  in  State  v.  Pike,  passim, 
and  the  cases  cited  by  the  learned 
counsel  for  the  appellant  in  argument. 
Commonwealth  v.  Dorsey,  103  Mass. 
412  ;  Mclntire  v.  McConn,  28  Iowa, 
480,  483;  Dickinson  v.  Dickinson,  61 
Pa.  St.  404;  Boyd  u.  Boyd,  66  Ibid. 
283,  286,  290;  Pidcock  v.  Potter,  68 
Ibid.  351  ;  1  Wharton's  Cr.  Law,  §  48. 

"  All  evidence  is  opinion  merely, 
unless  you  choose  to  call  it  fact  and 
knowledge,  as  discovered  by  and  man- 
ifested to  the  observation  of  the  wit- 
ness. 

"  And  it  seems  to  me  quite  unnec- 
essary and  irrelevant  to  crave  an  apol- 
ogy or  excuse  for  the  admission  of 
such  evidence,  by  referring  it  to  any 
exceptions  (whether  classified,  or  iso- 
lated and  arbitrary)  to  any  supposed 
general  rule,  according  to  the  lan- 
guage of  some  books  and  the  custom 
of  some  judges.  There  is,  in  truth, 
no  general  rule  requiring  the  rejec- 
tion of  opinions  as  evidence.  A  gen- 
eral rule  can  hardly  be  said  to  exist, 
which  is  lost  to  sight  in  an  enveloping 
mass  of  arbitrary  exceptions. 

"  But  if  a  general  rule  will  comfort 
any  who  insist  upon  excluding  and 
suppressing  truth,  unless  the  expres- 
sion of  the  truth  be  restrained  within 
the  confines  of  a  legal  rule,  standard, 
or  proposition,  let  them  be  content  to 
adopt  a  formula  like  this:  Opinions  of 
tvitnesscs  derived  from  observation  are 
admissible  in  evidence,  tchen,  from  the 
nature  of  the  subject  under  investigation, 
no  better  evidence  can  be  obtained.  No 
harm  can  result  from  such  a  rule, 
properly  applied.     It  opens  a  door  for 


the  reception  of  important  truths 
which  would  otherwise  be  excluded, 
while,  at  the  same  time,  the  tests  of 
cross-examination,  disclosing  the  wit- 
ness's means  of  knowledge,  and  his 
intelligence,  judgment,  and  honesty, 
restrain  the  force  of  the  evidence 
within  reasonable  limits,  by  enabling 
the  jury  to  form  a  due  estimate  of  its 
weight  and  value.  See  1  Redf.  on 
Wills,  136-141, 

"  Opinions  concerning  matters  of 
daily  occurrence,  and  open  to  common 
observation,  are  received  from  neces- 
sity; Commonwealth  v.  Sturtivant, 
117  Mass.  ;  and  any  rule  which  ex- 
cludes testimony  of  such  a  character, 
and  fails  to  recognize  and  submit  to 
that  necessity,  tends  to  the  suppres- 
sion of  truth  and  the  denial  of  jus- 
tice. 

"  The  ground  upon  which  opinions 
are  admitted  in  such  cases  is,  that, 
from  the  very  nature  of  the  subject  in 
issue,  it  cannot  be  stated  or  described 
in  such  language  as  will  enable  per- 
sons, not  eye- witnesses,  to  form  an 
accurate  judgment  in  regard  to  it.  De 
Witt  V.  Early,  17  N.  Y.  340;  Bel- 
lows, J.,  in  Taylor  v.  Grand  Trunk 
Railway,  48  N.  H.  309. 

"  How  can  a  witness  describe  the 
weight  of  a  horse?  or  his  strength? 
or  his  value?  Will  any  description 
of  the  wrinkles  of  the  f.ice,  the  color 
of  the  hair,  the  tones  of  the  voice,  or 
the  elasticity  of  step,  convey  to  a 
jury  any  very  accurate  impression  as 
to  the  age  of  the  person  described? 
And  so,  also,  in  the  investigation  of 
mental  and  psychological  conditions, 
—  because  it  is  impossible  to  convey 
to  the  mind  of  another  any  adequate 
conception  of  the  truth  by  a  recital  of 
visible  and  tangible  appearances;  bo- 
cause  you  cannot,  from  the  nature  of 
the    case,    describe    emotions,    senti- 

491 


§  513.] 


THE  LAW   OF   EVIDENCE. 


[book  II. 


which  do  not  themselves  involve  the  facts  from  which  they  are 
drawn. ^ 


ments,  and  affections,  which  are  really 
too  plain  to  admit  of  concealment, 
but,  at  the  same  time,  incapable  of 
description,  —  the  opinion  of  the  ob- 
server is  admissible  from  the  necessity 
of  the  case;  and  witnesses  are  per- 
mitted to  say  of  a  person,  '  He  seemed 
to  be  frightened ; '  '  He  was  greatly 
excited;'  'He  was  much  confused;' 
*  He  was  agitated ; '  '  He  was  pleased ; ' 
'  He  was  angry.'  All  these  emotions 
are  expressed  to  the  observer  by  ap- 
pearances of  the  countenance,  the 
eye,  and  the  general  manner  and  bear- 
ing of  the  individual,  —  appearances 
which  are  plainly  enough  recognized 
by  a  person  of  good  judgment,  but 
which  he  cannot  otherwise  commu- 
nicate than  by  an  expression  of  re- 
sults in  the  shape  of  an  opinion.  See 
Best  on  the  Principles  of  Evidence, 
585.  It  is  on  this  principle,  says  Mr. 
Best,  that  testimony  to  character  is 
received ;  as,  where  a  witness  deposes 
to  the  good  or  bad  character  of  a  party 
who  is  being  tried  on  a  criminal 
charge,  or  states  his  conviction  that, 
from  the  general  character  of  another 
witness,  he  ought  not  to  be  believed 
on  his  oath.  Best  on  Ev.  657.  *  So,' 
continues  Mr.  Best,  '  the  state  of  an 
unproducible  portion  o?  real  evidence, 
—  as,  for  instance,  the  appearance  of 
a  building,  or  of  a  public  document 
which  the  law  will  not  allow  to  be 
brought  from  its  repository,  —  may  be 
explained  by  a  term  expressing  a  com- 
plex idea,  e.  g.  that  it  looked  old,  de- 
cayed, or  fresh;  was  in  good  or  bad 
condition,  &c.     So,  also,  may  the  emo- 


tions or  feelings  of  a  party  whose 
psychological  condition  is  a  question. 
Thus,  a  witness  may  state  as  to 
whether,  on  a  certain  occasion,  he 
looked  pleased,  excited,  confused, 
agitated,  frightened,  or  the  like.' 

"  Considerations  of  this  character 
controlled  the  opinion  of  the  court  in 
De  Witt  V.  Barly,  before  cited.  The 
learned  judge,  in  delivering  the  opin- 
ion of  the  court,  said:  '  To  me  it 
seems  a  plain  proposition,  that,  upon 
inquiries  as  to  mental  imbecility  aris- 
ing from  age,  it  will  be  found  imprac- 
ticable, in  many  cases,  to  come  to  a 
satisfactory  conclusion,  without  re- 
ceiving, to  some  extent,  the  opinions 
of  witnesses.  How  is  it  possible  to 
describe,  in  words,  that  combination 
of  minute  appearances  upon  which  a 
judgment  in  such  cases  is  formed? 
The  attempt  to  try  such  a  question, 
excluding  all  matter  of  opinion,  would, 
in  most  cases,  I  am  persuaded,  prove 

entirely  futile A  witness  can 

scarcely  convey  an  intelligible  idea 
upon  such  a  question,  without  infusing 
into  his  testimony  more  or  less  of 
opinion.  Mental  imbecility  is  exhib- 
ited, in  part,  by  attitude,  by  gesture, 
by  the  tones  of  the  voice,  and  the  ex- 
pression of  the  eye  and  face.  Can 
these  be  described  in  language  so  as 
to  convey  to  one,  not  an  eye-witness, 
an  adequate  conception  of  their 
force  ?  '  —  and  see  Rand's  note  to 
Poole  V.  Richardson,  3  Mass.  (Rand's 
ed.)  330 

"  In  Darling  v.  Westmoi'eland,  52 
N.  H.  401,  403,  the  defendants,  argu- 


1  Cannell  r.  Ins.  Co.  59  Me.  582; 
Morris  v.  East  Haven,  41  Conn,  252; 
Messner  v.  People,  45  N.  Y.  1 ;  Ames 
v.  Snider,  69  111.  376  ;  Bissell  v.  Wert, 
35  Ind.  54  ;  Eaton  v.  Woolly,  28  Wise. 
492 


628  ;  State  v.  Thorp,  72  N.  C.  186  ; 
Gavisk  v.  R.  R.  49  Mo.  274;  Shep- 
herd V.  Hamilton  Co.  8  Heisk.  380 ; 
Larsan  v.  R.  R.  40  Cal.  272. 


CHAP.  VIII.] 


WITNESSES  :   EXAMINATION. 


[§  514. 


§  514.  It  is  not  to  be  expected  that  a  witness  should  reproduce 
entire  words  that  he  has  heard  uttered  by  another  even  at  a  sliort 


ing  that  evidence  of  Fletcher's  horse 
being  frightened  Avas  incompetent, 
suggested  that,  '  at  best,  it  was  evi- 
dence of  an  admission  or  a  declara- 
tion, by  Fletcher's  horse,  that  the  al- 
leged obstruction  looked  frightful  to 
him,  and  ....  not  even  a  declara- 
tion under  oath  at  that.'  But  the 
court,  holding  that  the  fright  of  Fletch- 
er's horse  was  as  competent  as  the 
fright  of  the  plaintiff's,  affirmed  the 
doctrine  of  Whittier  v.  Franklin,  46 
N.  H.  23,  that  the  fright  of  a  horse 
might  be  proved  by  witnesses  testify- 
ing that  he  '  appeared  to  be  frightened, 
or  that  in  their  opinion  he  was  fright- 
ened, or  (to  omit  superfluous  words, 
and  speak  in  that  positive  manner  in 
which  witnesses  would  generally  tes- 
tify on  such  a  subject)  that  he  was 
frightened.'     P.  403. 

"  A  non-expert  may  testify  that  he 
thought  a  horse  '  was  not  then  sound  : 
....  his  feet  appeared  to  have  a  dis- 
ease of  long  standing ; '  Willis  v. 
Quimby,  31  N.  H.  485,  487;  that  a 
horse  '  appeared  to  be  well,  and  free 
from  disease ; '  that  he  thought  '  he 
never  saw  any  indication  of  the  horse 
being  diseased.'  Spear  v.  Richard- 
son, 34  N.  H.  428-431.  These  two 
cases  relate  to  the  physical  condition 
of  a  horse.  The  same  doctrine  is 
equally  well  settled  in  relation  to  the 
mental  and  moral  coadition  of  ahorse, 
so  to  speak;  for,  in  State  v.  Avery,  44 
N.  H.  392,  393,  it  was  held,  —  Bel- 
lows, J.,  —  that  a  non-expert  might 
testify,  on  an  indictment  for  cruelly 
beating  a  horse,  that  the  horse  di'ove 
like  a  pleasant  and  well-disposed  horse, 
unless  when  harassed  by  the  whip ; 
that,  at  the  time  of  the  beating,  he 
saw  no  viciousness  or  obstinacy  in  the 
horse,  and  that  the  blows  appeared  to 
affect  the  horse  in  a  particular  man- 


ner. The  evidence  was  opinion,  and 
nothing  else;  and  it  was  opinion  of 
the  mental  and  moral  condition  of  the 
horse,  judged  of  by  the  witness  from 
actions  which  it  was  impossible  for  the 
witness  to  describe  in  any  better  or 
more  satisfactory  way,  so  as  to  give 
the  jury  the  best  evidence  the  nature 
of  the  subject  permitted. 

"  In  Whittier  v.  Franklin,  46  N.  H. 
23,  an  action  for  a  defective  highway, 
—  one  point  of  the  defence  being  that 
the  plaintifTs  horse,  which  he  was 
driving  at  the  time  of  the  accident, 
was  vicious  and  unsafe,  and  that  the 
plaintiff's  injuries  were  caused  by  the 
vices  of  his  horse,  —  it  was  held,  — 
Bellows,  J.,  delivering  the  opinion  of 
the  court,  —  that  a  non-expert  who 
witnessed  the  accident  might  testify 
that  '  he  did  not  see  any  appearance 
of  fright ;  that  the  horse  did  not  ap- 
pear to  be  frightened  in  the  least  be- 
fore he  went  off  the  bank,  or  after- 
wards ;  that  he  appeared  to  be  rather 
a  sulky  dispositioned  horse  to  use.' 
Judge  Bellows  cites  People  v.  East- 
wood, 14  N.  Y.  562,  where  it  was 
held  that  opinions  as  to  whether  a 
person  is  intoxicated  may  be  received; 
Milton  f.  Rowland,  11  Ala.  732  ;  opin- 
ions as  to  the  existence  of  disease, 
when  perceptible  to  the  senses  ;  Ben- 
nett V.  Fail,  26  Ala.  605;  opinion  that 
a  slave  appeared  to  be  healthy;  and 
other  cases  in  relation  to  opinions  of 
a  healthy  or  sickly  condition  of  body. 
He  also  cites  Spear  v.  Richardson, 
and  Willis  v.  Quimby,  before  referred 
to,  as  to  opinion  of  health  of  horses. 
The  very  learne<l  judge  says  that  the 
substance  of  the  statement  of  the  wit- 
ness is,  that  the  horse  did  not  appear 
to  be  frightened,  but  appeared  to  be 
sulky;  that,  on  such  sulyects,  persons 
of  common  observations  may  and  do 

493 


§  515.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


Witness 
may  give 
the  sub- 
stance of 
conversa- 
tions or 
writings. 


distance  of  time  ;  and  a  profession  so  to  do,  unless  accurate 
notes  at  the  time  were  taken,  repels  rather  than  attracts 
credence.^  It  has  consequently  been  held  sufficient, 
when  the  spoken  words  of  another  are  to  be  testified  to, 
to  give  their  substance ;  the  witness  swearing  to  the 
material  accuracy  and  completeness  of  the  substance.^ 
A  witness,  however,  cannot  be  permitted  to  say  what  is  the  im- 
pression left  on  him  by  a  conversation,  unless  he  swears  to  such 
impressions  as  recollections  and  not  inferences.^  What  a  wit- 
ness did  in  consequence  of  a  conversation,  however,  he  may  be 
allowed  to  prove.* 

§  515.  What  has  been  said  of  words  applies  to  all  facts.  I 
cannot  remember  exactly  an  entire  conversation,  nor 
can  I  reproduce  exactly  a  chain  of  occurrences  in  their 
order.  The  limitedness  both  of  human  vision  and  of 
human  expression  forbids  this ;  it  is  enough  if  a  witness 
swears  to  events  and  objects  according  to  the  best  of  his  recollec- 
tion and  belief.^     Bat  it  is  no  objection  to  the  admissibility  of 

form  opinions  that  are  reasonably  re-  Robinson,  27  Penn.  St.  30  ;  Brown  v. 
liable  in  courts  of  justice,  from  marks  Com.  73  Penn.  St.  321;  Summons  v. 
and  peculiarities  that  could  not  in  State,  5  Oh.  St.  325  ;  Home  v.  Wil- 
words  be  conveyed  to  the  minds  of  hams,  23  Ind.  37;  Mineral  Point  R. 
jurors,  to  enable  them  to  make  the  R.  v.  Keep,  22  111.  9;  Benson  v.  Hun- 
just  inferences;  that  it  is  much  like  tington,  21  Mich.  415;  Moody  v.  Da- 


Vague  im- 
pressions 
of  facts  are 
inadmissi- 
ble. 


the  testimony  that  a  horse  appeared 
well  and  free  from  disease,  or  that  a 
person  appeared  to  be  healthy,  or  in- 
toxicated. P.  26.  The  evidence  was 
held  admissible  as  an  opinion." 

1  See  supra,  §§411,  413. 

«  U.  S.  V.  White,  5  Cranch  C.  C. 
457;  U.  S.  V.  Macomb,  5  McLean, 
286;  Lime  Bank  v.  Fowler,  52  Me. 
531 ;  Pope  v.  Machias  Co.  52  Me.  535; 
Eaton  V.  Rice,  8  N.  H.  378;  Maxwell 
V.  Warner,  11  N.  H.  568;  Young  v. 
Dearborn,  22  N.  H.  372;  Williams  v. 
Willard,  23  Vt.  369;  Clark  v.  Hough- 
ton, 12  Gray,  38;  Woods  v.  Keyes, 
14  Allen,  238  ;  Kittredge  v.  Russell, 
114  Mags.  67;  Seymour  v.  Harvey,  11 
Conn.  275;  Huff  v.  Bennett,  6  N.  Y. 
337;  Chaffee  v.  Cox,  1  Hilt.  78;  Sloan 
t;.  Summers,  20  N.  J.  L.  6 ;  Rhine  v. 

494 


vis,  10  Ga.  403;  Riggins  v.  Brown, 
12  Ga.  271  ;  Rome  R.  R.  v.  Sullivan, 
14   Ga.    277;  Trammell  v.  Hemphill, 

27  Ga.  528;  Gildersleeve  v.  Caraway, 
10  Ala.  260;  Buchanan  v.  Atchison, 
39  Mo.  503  ;  Thurmond  v.  Trammell, 

28  Tex.  371.  See  Magee  v.  Doe,  22 
Ala.  609.      Supra,  §  180. 

8  Morris  v.  Stokes,  21  Ga.  552  ; 
Lockett  V.  Minis,  27  Ga.  207;  Bell  v. 
Troy,  35  Ala.  184;  Crews  v.  Thread- 
gill,  35  Ala.  334;  Helm  v.  Cantrell,  59 
111,  528;  Yost  v.  Devault,  9  Iowa,  60. 

*  Whaley  v.  State,  11  Ga.  123. 

5  Wilson  V.  McLean,  1  Cranch  C. 
C.  465;  Clark  v.  Bigelow,  16  Me. 
246;  Lewis  v.  Freeman,  17  Me.  260; 
Humphreys  i'.  Parker,  52  Me.  505  ; 
Hibbard  v.  Russell,  16  N.  H.  410; 
Tibbetts  v.  Flanders,  18  N.  H.  284; 


CHAP.  VIII.]  WITNESSES:    REFRESHING  MEMORY. 


[§  516. 


such  evidence  that  the  witness  uses  the  term  "  impression,"  if  he 
testifies  to  what  he  believes,  however  distrustful  he  may  be  as  to 
perfect  accuracy .^  It  is  for  the  jury  to  determine  how  far  such 
"  impressions  "  are  reliable.^  So  a  witness  is  allowed  to  state 
why  certain  facts  are  impressed  on  his  memory,  if  such  reasons 
are  not  for  other  grounds  inadmissible.^  Impressions,  however, 
which  are  conjectural  and  uncertain,  cannot  be  detailed.* 

IX.    REFRESHING  MEMORY   OF  WITNESS. 

§  516.  A  witness  who  makes  or  is  concerned  in  making  written 
notes  of  an  event  near  the  time  of  its  occurrence,  is  per-   witness 
mitted  to  refer  when  under  examination  to  such  notes,   f^gfh'ii^s 
in  order  to  refresh  his  memory.^     So  a  witness,  to  re- 
fresh his  memory,  may  refer  to  freight  books  kept  by   randa. 


memory 
bv  memo- 


Hoitt  V.  Moulton,  21  N.  H.  586;  State 
V.  Flanders,  38  N.  H.  324;  Morse  v. 
Crawford,  17  Vt.  499;  Cavendisli  v. 
Troy,  41  Vt.  99;  Dodge  v.  Bache,  57 
Penn.  St.  421  ;  Burt  v.  Gwinn,4  Har. 
&  J.  507  ;  Rhode  v.  Louthain,  8 
Blackf.  413;  Wiggins  v.  Holley,  11 
Ind.  2  ;  Lowry  v.  Harris,  12  Minn. 
255;  Franklin  v.  Macon,  12  Ga.  257; 
Rome  R.  R.  v.  Sullivan,  14  Ga.  277; 
Printup  V.  Mitchell,  17  Ga.  558  ;  Hug- 
uley  V.  Holstein,  35  Ga.  271  ;  Head 
V.  Shaver,  9  Ala.  791  ;  Griffin  v. 
Isbell,  17  Ala.  184;  Campbell  v. 
State,  23  Ala.  44;  Wells  v.  Shipp,  1 
Miss.  (Walk.)  353;  Patrick  v.  Adams, 
19  Mo.  73  ;  Wetherell  v.  Patterson, 
31  Mo.  458;  Cornet  v.  Bertelsmann, 
61  Mo.  118;  Thompson  v.  Blackwell, 
17  B.  Monr.  600  ;  Jones  v.  Childs,  2 
Dana,  25  ;  Sweeney  v.  Booth,  28  Tex. 
113;  Chaires  v.  Brady,  10  Fla.  133. 
Supra,  §  413. 

What  a  witness  did  in  consequence 
of  certain  conditions  is  generally  ad- 
missible when  proof  of  the  conditions 
could  be  received. 

1  Ibid. 

a  Duvall  V.  Darby,  38  Penn.  St.  56; 
Crowell  V.  Bank,  3  Oh.  St.  406;  Mc- 
Rae  V.  Morrison,  13  Ired.  L.  46;  Bev- 
erly V.  Williams,  4  Dev.  &  B.  L.  236. 


8  Thomas  v.  State,  24  Ga.  287 ; 
Bell  V.  Troy,  35  Ala.  184. 

*  Clark  V.  Bigelow,  16  Me.  246; 
Lewis  V.  Brown,  41  Me.  448  ;  Hum- 
phreys V.  Parker,  52  Me.  502  ;  Teb- 
betts  V.  Flanders,  18  N.  H.  284; 
Wheeler  v.  Blandin,  24  N.  H.  168; 
State  V.  Flanders,  38  N.  H.  324;  Ives 
I'.  Hamlin,  5  Cush.  534 ;  Wiggins  v. 
Holly,  1 1  Ind.  2  ;  Wells  v.  Shipp,  1 
Miss.  (Walk.)  383. 

^  Stephen's  Ev.  128;  Ins.  Co.  v. 
Weides,  14  Wall.  375;  Brooks  v.  Goss, 
61  Me.  307  ;  Pinney  v.  Andrus,  41  Vt. 
631;  Chapin  v.  Lapham,  20  Pick.  467; 
Babb  V.  Clemson,  12  Serg.  &  R.  328; 
Smith  V.  Lane,  12  S.  &  R.  84;  Se- 
lower  V.  Rexford,  52  Penn.  St.  308 ; 
Waters  v.  Waters,  35  ^Id.  531  ;  Seav- 
erns  v.  Tribby,  48  III.  195;  White  v. 
Tucker,  9  Iowa,  100  ;  iMoore  r.  Moore, 
39  Iowa,  461  ;  Watkins  i^.  Wallace,  19 
Mich.  57;  Raynor  v.  Norton,  31  Mich. 
210;  Cowles  v.  Hayes,  71  N.  C.  230; 
Columbia  v.  Harrison,  2  Tread.  (S.  C.) 
213;  BuUv.  Lamson,  5  S.  C.  284;  God- 
den  V.  Pierson,  42  Ala.  3  70  ;  Davidson 
V.  De  Lai  Ian  de,  12  La.  An.  826  ;  Chia- 
pella  r.  Brown,  14  La.  An.  189;  Peo- 
ple V.  Cotta,  49  Cal.  16  7. 

"Memoranda  of   facts,  or   circum- 

495 


§  516.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


him  or  verified  by  him  at  tlie  making  ;  ^  and  to  "  check-slips," 
made  in  the  ordinary  course  of  business,  in  transshipping  goods 
from  one  car  to  another,  in  proof  of  the  number  of  the  cars,  and 
of  the  distinctive  marks  of  the  goods.^  So  a  surveyor  may  refresh 
his  memory  by  an  extract  from  his  field  notes,^  even  though  the 
copy  he  uses  is  in  the  shape  of  a  printed  report  made  by  him,  he 
being  able  to  verify  its  correctness.*  In  case  the  witness  swears 
to  the  accuracy  of  the  memoranda,  or  other  refreshing  documents, 
they  may  go  to  the  jury  as  evidence,  if  not  per  se  inadmissible.^ 


stances,  made  by  a  witness  at  the  time 
of  the  occuri'ence  of  a  given  transac- 
tion, -are  sometimes  permitted  to  be 
given  in  evidence  to  show  the  exist- 
ence of  such  facts  or  circumstances. 
Thus  in  Marcly  v.  Schults,  29  N.  Y. 
346,  the  offer  was  to  read  a  memo- 
randum of  the  width  of  the  flush  boards 
on  a  certain  dam,  which  was  a  specific 
fact,  material  to  the  issue.  In  Guy  v. 
Mead,  22  N.  Y.  462,  the  ofier  was  to 
show  that,  at  a  given  time,  a  certain 
indorsement  of  forty  dollars  was  not 
on  a  note,  that  being  a  material  fact 
for  the  consideration  of  the  jury.  In 
Barker  v.  N.  Y.  C.  R.  R.  Co.  24  N.  Y. 
599,  a  conductor  was  allowed  to  read 
an  entry,  made  by  him,  of  the  arrival 
of  a  train  in  Syracuse,  at  a  time 
named."  Hunt,  C.  Reed  v.  Express 
Co.  48  N.  Y.  468. 

^  Briggs  V.  LafTerty,  14  Gray,  525. 

2  Shriedley  v.  State,  23  Oh.  St.  130. 

3  Harrison  v.  Middleton,  11  Grat. 
527. 

*  Horn  V.  Mackenzie,  6  CI.  &  F. 
619.     Infra,  §  522. 

6  See  infra,  §§  519,  520,  521,  and 
cases  cited  infra,  §  525,  and  cited  in 
prior  notes  to  this  section.  By  the 
New  York  Civ.  Code,  §  1843,  "A 
witness  is  allowed  to  refresh  his  mem- 
ory respecting  a  fact,  by  anything 
written  by  himself,  or  under  his  direc- 
tion at  the  time  when  the  fact  occurred, 
or  immediately  thereafter,  or  at  any 
other  time  when  the  fact  was  fresh  in 

496 


his  memory,  and  he  knew  that  the 
same  was  correctly  stated  in  the  writ- 
ing. But  in  such  case  the  writing 
must  be  produced,  and  may  be  seen 
by  the  adverse  party,  who  may,  if  he 
choose,  cross-examine  the  witness  upon 
it,  and  may  read  it  to  the  jury.  So, 
also,  a  witness  may  testify  from  such 
writing,  though  he  retain  no  recollec- 
tion of  the  particular  facts;  but  such 
evidence  must  be  received  with  cau- 
tion." 

"  Notes  or  memoranda  made  up  by 
the  witness  at  the  moment,  or  recently 
after  the  fact,  may  be  looked  to  in 
order  to  refresh  his  memory;  but  if 
they  were  made  up  at  the  distance 
of  weeks  or  months  thereafter,  and 
still  more,  if  done  at  the  recommen- 
dation of  one  of  the  parties,  they  are 
not  admissible.  It  is  accordingly  usual 
to  allow  a  witness  to  look  to  mem- 
oranda made  at  the  time,  of  dates, 
distances,  appearances  on  dead  bodies, 
lists  of  stolen  goods,  or  the  like,  be- 
fore emitting  his  testimony,  or  even  to 
read  such  notes  to  the  jury  as  his  evi- 
dence, he  having  first  sworn  that  they 
were  made  at  the  time,  and  faithfully 
done.  In  regard  to  lists  of  stolen 
goods,  in  particular,  it  is  now  the  usual 
practice  to  have  inventories  of  them 
made  up  at  the  time  from  the  informa- 
tion of  the  witness  in  precognition, 
signed  by  him,  and  libelled  on  as  a 
production  at  the  trial,  and  he  is  then 
desired  to  read  them,  or  they  are  read 


CHAP.  VIII.]  WITNESSES:    REFRESHING   MEMORY. 


[§  517. 


§  517.  But  a  memorandum  is  inadmissible  when  it  is  second 
ary,  e.g.  where  it  is  a  copy  of  another  not  satisfactorily 
accounted  for,^  or  where  the  witness  could  swear  to  the 
fact  independently  of  the  memorandum.^  As  we  will 
hereafter  see,  the  opposing  party  may  put  a  memoran- 
dum so  used  in  evidence  after  verifyinpj  it  on  cross-examination."^ 


Not  admis- 
sible when 
nieniorau- 
diini  is  un- 
necessary. 


to  him,  and  he  swears  that  they  con- 
tain a  correct  list  of  the  stolen  arti- 
cles. In  this  way  much  time  is  saved 
at  the  trial,  and  much  more  correctness 
and  accuracy  is  obtained  than  could 
possibly  have  been  expected,  if  the 
witness  were  required  to  state  from 
memory  all  the  particulars  of  the 
stolen  articles,  at  the  distance,  per- 
haps, of  months  from  the  time  when 
they  were  lost. 

"  With  the  exception,  however,  of 
such  notes,  memoranda,  or  invento- 
ries, made  up  at  the  time  or  shortly 
after  the  occasion  libelled,  a  witness 
is  not  permitted  to  refer  to  a  written 
paper  as  containing  his  deposition  ; 
for  that  would  annihilate  the  whole 
advantage  of  i)arol  evidence  and  viva 
voce  examination,  and  convert  a  jury 
trial  into  a  mere  consideration  of  writ- 
ten instruments.  There  is  one  ex- 
ception, however,  properly  introduced 
into  this  rule  ;  in  the  case  of  medical 
or  other  scientific  reports,  or  certifi- 
cates, which  are  lodged  in  process  be- 
fore the  trial,  and  libelled  on  as  pro- 
ductions in  the  indictment,  and  which 
the  witness  is  allowed  to  read  as  his 
deposition  to  thejury,  confirming  it  at 
its  close  by  a  declaration  on  his  oath, 
that  it  is  a  true  report.  The  reason 
of  this  exception  is  founded  on  the 
consideration,  that  the  medical  or 
otlier  scientific  facts  or  appearances, 
which  are  the  subject  of  such  a  re- 
port, are  generally  so  minute  and  de- 
tailed that  they  cannot  with  safety  be 
intrusted  to  the  memory  of  the  wit- 
ness, but  much  more  reliance  may  be 
placed  on  a  report  made  by  him  at 
VOL.  I.  32 


the  time  when  the  facts  or  appear- 
ances ai'e  fresh  in  his  recollection ; 
while,  on  the  other  hand,  such  wit- 
nesses have  generally  no  personal  in- 
terest in  the  matter,  and  from  their 
situation  and  rank  in  life,  are  much 
less  liable  to  suspicion  than  those  of 
an  inferior  class,  or  more  intimately 
connected  with  the  transaction  in 
question.  Although,  therefore,  the 
scientific  witness  is  always  called  on 
to  read  his  report,  as  afl^brding  the 
best  evidence  of  the  appearances  he 
was  called  on  to  examine,  yet  he  may 
be,  and  generally  is,  subjected  to  a 
further  examination  by  the  prosecutor 
or  a  cross-examination  on  the  prison- 
er's part;  and  if  he  is  called  on  to 
state  any  facts  in  the  case,  uncon- 
nected with  his  scientific  report,  as 
conversations  with  the  deceased,  con- 
fessions heard  by  him  from  the  panel, 
or  the  like,  ulitur  jure  communi,  he 
stands  in  the  situation  of  an  ordinary 
witness,  and  must  give  his  evidence 
verbally,  in  answer  to  the  questions 
put  to  him,  and  can  only  refer  to  jot- 
tiiiifs,  or  memoranda  of  dates,  &c.,  made 
up  at  the  time  to  refresh  his  memory, 
like  any  other  person  put  into  the  box." 
Alison's  Crim.  Law.  ])p.  510-2. 

1  McCormick  v.  Mulvihill,  1  Hilt. 
131  ;  Neil  v.  Childs,  10  Ired.  L.  195; 
Schettler  v.  Jones,  20  Wise.  412. 

2  Wolfborough  v.  Alton,  18  N.  H. 
195;  Kelsea  i'.  Fletcher,  48  N.  H.  282; 
Meacham  v.  IVll,  51  Barb.  C5;  Driggs 
V.  Smith,  45  How.  (N.  Y.)  Pr.  44  7; 
Young  V.  Catlctt,  6  Duer,  437;  llaack 
V.  Fearing,  5  Robt.  (N.  Y.)  528. 

8  Infra,  §  526. 

497 


§  518.] 


THE   LAW    OF   EVIDENCK. 


[book  II. 


§  518.  The  fact  that  the  witness  has  no  recollectian  indepen- 
■NTot  fatal  ^l^iit  of  the  notes,  does  not  exclude  his  testimony  as  to 
that  wit-      i\^Q  filets  stated  in  the  notes,  when  he  states  tliat  it  was 

ness  has  no        _  _ 

recollection  his  uniform  and  unvarying  practice  to  make  true  notes 
dent  of  of  events  of  the  character  noted,  immediately  after  the 
occurrence  of  the  events,  and  that  the  memoranda  are 
parts  of  the  notes  in  question.  Nor  will  his  testimony,  as  so 
made  up,  be  excluded,  if,  after  recurring  to  and  identifying  the 
notes,  as  substantially  original  and  contemporaneous,  he  is  able 
to  swear  by  their  means  to  the  facts  to  which  they  relate.^  So  a 
notary's  belief  that  protest  and  notice  were  given,  based  on  his 
entry  in  his  books,  his  habit  being  to  make  such  entry  on  the 
happening  of  the  event,  will  be  evidence,  though  he  has  no  rec- 
ollection of  the  protest  and  notice,  independent  of  his  books.^ 
The  same  rule  applies  to  a  surveyor's  field  notes  used  to  refresh 
the  memory  of  the  surveyor.^  So  a  witness's  testimony  to  the 
execution  of  a  deed  is  admissible,  though  he  recollects  nothing  of 
the  facts,  and  only  knows  that  his  attestation   must  have  been 


1  R.  V.  St.  Martins,  12  A.  &  E.  210; 
Maugham  v.  Hubbard,  8  B.  &  C.  14; 
Bradley  v.  Davis,  26  Me.  349  ;  Haven 
V.  Wendell,  11  N.  H.  112;  Wallace  v. 
Goodhall,  18  N.  H.  439  ;  Huckins  v. 
People's  Co.  31  N.  H.  238;  State  v. 
Shinborn,  46  N.  H.  49  7  ;  Mattocks 
V.  Lyman,  16  Vt.  113;  Norton  v. 
Downer,  33  Vt.  26;  Kent  v.  Garvin, 
1  Gray,  148  ;  Bradford  v.  Stevens, 
10  Gray,  378;  Dugan  v.  Mahoney,  11 
Allen,  572;  Adams  v.  Coulliard,  102 
Mass.  167;  Field  v.  Thompson,  119 
Mass.  152;  Lawrence  v.  Baker,  5 
Wend.  301;  Clark  v.  Voree,  15  Wend. 
195  ;  Bank  v.  Culver,  2  Hill  (N.  Y.), 
531 ;  Moore  v.  Meaghan,  10  N.  Y. 
207;  Halsey  v.  Sinsebaugh,  15  N.  Y. 
485;  Marcly  v.  Schultz,  29  N.  Y. 
346;  Lefevre  v.  Lefevre,  30  N.  Y.  27; 
Kennedy  v.  Crandell,  3  Lansing,  1  ; 
Tayler  v.  Stringer,  1  Hilt.  377;  Far- 
mers' Bk.  V.  Boraef,  1  Rawle,  152; 
Urket  V.  Coryell,  5  Watts  &  S.  60 ; 
Eby  V.  Eby,  5  Penn.  St.  435 ;  Gilraore 

498 


r.  Wilson,  53  Penn.  St.  194  ;  Fitzgib- 
bon  r.  Kinney,  3  Harr.  (Del.)  317; 
McDaniel  v.  Webster,  4  Houst.  305  ; 
Martin  v.  Good,  14  Md.  498;  Conner 
V.  Mt.  Vernon  Co.  25  Md.  55  ;  Spiker 
V.  Nydegger,  30  Md.  315;  Moots  v. 
State,  21  Oh.  St.  653;  Harrison  r. 
Middleton,  11  Grat.  527;  Humphreys 
V.  Spear,  15  111.  275  ;  Wolcott  v. 
Heath,  78  111.  433;  Davenport  v.  Cam- 
ming, 11  Iowa,  219  ;  Stickney  t'.  Bron- 
son,  5  Minn.  215;  Chute  r.  State,  19 
Minn.  271;  Riggs  v.  Weise,  24  Wise. 
543;  Carr  v.  Stanley,  7  Jones  (N.  C.) 
L.  131;  State  i'.  Rawle,  2  Nott  & 
McC.  331;  O'Neil  v.  Walton,  1  Rich. 
(S.  C.)  234;  Vastbinder  v.  Metcalf, 
3  Ala.  100;  Cowles  v.  State,  50  Ala. 
454;  Tandy  v.  Masterson,  1  Bibb,  330; 
People  V.  Elyea,  14  Cal.  144.  See 
fully  infra,  §  680. 

2  Bank   of  Tennessee  v.   Cowan,   7 
Humph.  70. 

3  Harrison   v.  Middleton,   1 1   Grat. 
527  ;  Nolin  v.  Parmer,  21  Ala.  66. 


CHAP.  VIII.]  WITNESSES  :    REFRESHING   MEMORY. 


[§  -^19. 


contemporaneous  and  correct.^     In  such  cases  it  is  of  course  nec- 
essary that  the  notes  relied  on  should  be  produced  in  court. ^ 

§  519.  Nor  to  enable  a  witness  so  to  refresh  his  memory,  is  it 
necessary  that  the  memorandum  thus   used  should  be   ^, 

...  .  .  .  .  „    Not  neces- 

capable  of  being  admitted  independently  in  evidence.'*   sary  that 
Short-hand  notes,  in  themselves  not  admissible,  from    should  be 
their  imperfectness  (if  for  no  other  reasons),  may  be   de„^t!y "ad- 
reverted   to   by   the   witness,   if  made   by  him   at  the   ""ss'i^'e. 
time  ;  *  and  so  of  an  instrument  without  a  stamp  ;  ^  and  so  of 
pencil  notes.^     So  it  has  been  held,  in  the  supreme  court  of  the 
United  States,  that  in  a  suit  against  an  insurance  company  for 
the  value  of  goods   lost  in   the   burning   of  a  store,  day-books 
and  ledgers,  whose  correctness  as  showing  the  amount  and  value 
of  the  goods  is  testified  to  by  the  person  proving  them,  are,  in 
connection  with  his  testimony,  competent  evidence,  though  they 
would  not  be  so  by  themselves,  to  show  such  value." 


^  Maugham  v.  Hubbard,  8  B.  &  C. 
IG.     See  infra,  §  739. 

2  Hall  V.  Ray.  18  N.  H.  126. 

It  has,  however,  been  held  in  New 
Hampshire,  that  whether  a  memoran- 
dum, which  a  witness  knew  when  it 
was  made  to  be  correct,  can  go  to 
the  jury  as  evidence,  depends  upon 
whether  the  witness,  after  examining 
it,  is  able  to  state  the  fact  from  mem- 
ory.     Watts  V.  Sawyer,  55  N.  H.  39. 

"  It  is  clear  that  the  invoice  taken 
by  the  plaintiff,  with  the  assistance  of 
Hartwell  and  Kame,  in  the  manner 
stated  in  the  case,  was  not  admissible 
to  show  the  cost  of  the  goods.  If"  ad- 
missible at  all,  for  any  purpose,  I  think 
it  must  be  as  a  memorandum  made  by 
the  witness,  wliich  he  knew,  at  the 
time  it  was  made,  to  be  correct,  and 
then  only  in  case  his  memory  was  not 
refreshed  by  an  examination  of  it,  so 
that  he  could  then  state,  from  recol- 
lection, such  matters  contained  in  it  as 
might  be  material.  Kelsea  v.  Fletcher, 
48  N.  H.  282.  I  do  not  see  why  evi- 
dence, to  show  of  what  articles  the 
stock  was    made   up,  as  well   as   the 


price  each  article  brought  at  the  sale, 
on  the  basis  of  62^  per  cent,  of  the 
prices  set  down  in  the  paper,  was  not 
admissible  as  a  memorandum,  accord- 
ing to  the  well  settled  and  well  under- 
stood rules  of  practice  in  this  state  on 
that  subject."  Ladd,  J.,  "Watts  v. 
Sawyer,  55  N.  H.  40. 

3  Ins.  Co.  V.  Weide,  11  Wall.  375; 
Dugan  V.  Mahoney,  11  Alien,  572; 
Sizer  i".  Burt,  4  Denio,  42G;  Neil  v. 
Childs,  10  Ired.  (L.)  195;  Mayson  v. 
Beasley,  27  Miss.  106.  See  Peck  v. 
Lane,  3  Lansing,  136;  Ueed  r.  Jones, 
15  Wise.  40;  Schettler  v.  Jones,  20 
Wise.  412. 

*  R.  V.  O'Connell,  Arm.  &  T.  165. 

6  Alcock  V.  Ins.  Co.  l.J  Q.  B.  292. 

"  Stetson  V.  Godfrey,  20  N.  H.  227. 

■^  "  As  to  the  second  question,  the  ad- 
missibility of  the  evidence  received  by 
tlie  court,  there  can  be  no  doubt  but 
the  day-books  and  ledger,  the  entries 
in  which  were  testified  to  be  correct 
by  tlic  persons  who  made  them,  were 
properly  admitted.  They  would  not 
have  been  evidence,  per  .sc,  but  with 
the  testimony  accompanying  them,  all 

499 


§  520.] 


THE   LAW    OF   EVIDENCE. 


[book  ir. 


§  520.  It  is  scarcely  necessary  to  add,  the  mere  fact  of  a  wit- 
Memoramia  ^^^^^  being  permitted  to  refer  to  a  paper  to  refresh  his 
admissible     memorv  does  not  authorize  the  putting  such  paper  in 

when  pri-  •'  x  a  ±     x 

evidence  by  the  party  calling  the  witness.     Such  paper 
(e.  (/.  a  letter  containing  other  matters)  may  embrace 


mary  and 
relevant. 


objections  were  removed.  Wood  v. 
Ambler,  4  Selden,  170.  So  in  respect 
to  the  memorandum  on  the  fly-leaf  of 
the  ledger.  It  was  made  by  one  of 
the  witnesses,  taken  from  inventories, 
present  at  the  time  it  was  made,  but 
■which  had  been  subsequently  destroyed 
by  the  fire.  Those  inventories,  if  they 
had  been  in  existence,  would  have 
been  the  best  evidence,  and,  unless 
their  loss  was  accounted  for,  must  have 
been  produced.  But,  being  lost,  parol 
evidence  of  their  contents  was  admis- 
sible, as  secondary  evidence,  and  so 
was  the  memorandum  taken  from  them, 
for  the  like  reason.  As  we  understand 
the  evidence  in  the  case,  the  correct- 
ness of  the  entry  was  testified  to.  The 
witness  was  cross-examined,  among 
other  things,  as  to  the  correctness  of 
it.  The  testimony  is  not  given,  but, 
if  the  evidence  of  the  witness  had  not 
been  satisfactory,  it  should  have  been 
placed  upon  the  record."  Nelson,  J., 
Ins.  Co.  V.  Weide,  6  Wall.  680. 

The  following  opinions  will  be  use- 
ful in  this  connection  :  — 

"  It  is  contended,  in  the  first  place, 
that  thei'e  was  error  in  the  court's 
receiving  the  entry  of  the  footings 
upon  the  fly-leaf  of  the  new  ledger. 
It  will  be  observed  that  the  footings 
upon  the  fly-leaf  of  the  ledger  were 
not  offered  or  received  as  indepen- 
dent evidence.  They  were  accompa- 
nied by  proof  that  they  were  correct 
statements  of  the  values  of  the  mer- 
chandise, and  that  they  were  correctly 
transcribed  either  from  the  inventory 
book  or  from  the  fly-leaf  of  the  ex- 
hausted ledger,  both  of  which  appear 
to  have  been  originals.     How  far  pa- 

500 


pers,  not  evidence  per  se,  but  proved 
to  have  been  true  statements  of  fact, 
at  the  time  they  were  made,  are  ad- 
missible in  connection  with  the  testi- 
mony of  a  witness  who  made  them,  has 
been  a  frequent  subject  of  inquiry, 
and  it  has  many  times  been  decided 
that  they  are  to  be  received.  And 
why  should  they  not  be  ?  Quantities 
and  values  are  retained  in  the  mem- 
ory with  great  difficulty.  If  at  the 
time  when  an  entry  of  aggregate  quan- 
tities and  values  was  made,  the  wit- 
ness knew  it  was  correct,  it  is  hard  to 
see  why  it  is  not  at  least  as  reliable  as 
is  the  memory  of  the  witness.  It  is 
true  a  copy  of  a  copy  is  not  generally 
receivable,  for  the  reason  that  it  is  not 
the  best  evidence.  A  copy  of  the  orig- 
inal is  less  likely  to  contain  mistakes, 
for  there  is  more  or  less  danger  of  va- 
riance with  every  new  transcription. 
For  that  reason  even  a  sworn  copy  of 
a  copy  is  not  admissible  when  the 
original  can  be  produced.  But  in  this 
case  the  inventory  book  and  the  fly- 
leaf of  the  exhausted  ledger  had  both 
been  burned.  There  was  no  better 
evidence  in  existence  than  the  foot- 
ings in  the  new  ledger.  And  we  do 
not  understand  the  bill  of  exceptions 
as  showing  those  footings  to  have 
been  copied  from  a  copy.  It  does  not 
appear  whether  they  were  taken  from 
the  inventory  book  or  from  the  fly- 
leaf of  the  old  ledger.  And  it  is  of 
little  importance,  for  as  those  entries 
were  made  at  the  same  time,  neither 
ought  to  be  regarded  as  a  copy  of  the 
other,  but  rather  both  should  be  con- 
sidered originals.  We  do  not,  how- 
ever, propose  to  discuss  this  exception 


CHAP.  VIII.]  WITNESSES  :   REFRESHING   MEMORY. 


[§  620. 


topics  inadmissible  as  irrelevant  or  self-serving.^  It  is  otherwise, 
however,  when  the  memorandum  simply  records  the  event  which 
the  witness  details  ;  in  which  case  the  memorandum  is  in  itself 
evidence  for  the  jury.^     On  the  other  hand,  unless  book  entries 


at  length,  for  we  regard  it  as  settled 
by  tlie  decision  in  Insurance  Company 
V.  Weide,  9  Wallace,  6  77,  that  the 
evidence  under  the  circumstances  was 
properly  received."  Strong,  J.,  In- 
surance Companies  v.  Weide,  14  Wal- 
lace, 380. 

"  The  rule,  with  some  exceptions, 
not  including  the  present  case,  re- 
quires, for  the  admissibility  of  the 
entries,  not  merely  that  they  shall  be 
contemporaneous  with  the  facts  to 
which  they  relate,  but  shall  be  made 
by  parties  having  personal  knowledge 
of  the  facts,  and  be  corroborated  by 
their  testimony,  if  living  and  accessi- 
ble, or  by  proof  of  their  handwriting, 
if  dead,  or  insane,  or  beyond  the  reach 
of  the  process  or  commission  of  the 
court.  The  testimony  of  living  wit- 
nesses personally  cognizant  of  the 
facts  of  which  they  speak,  given  under 
the  sanction  of  an  oath  in  open  court, 
where  they  may  be  subjected  to  cross- 
examination,  affords  the  greatest  se- 
curity for  truth.  Their  declarations, 
verbal  or  written,  must,  however, 
sometimes  be  admitted  when  they 
themselves  cannot  be  called,  in  order 
to  prevent  a  failure  of  justice.  The 
admissibility  of  the  declarations  is  in 
such  cases  limited  by  the  necessity 
upon  which  it  is  founded. 

"  We  do  not  deem  it  important  to 
cite  at  length  authorities  for  the  rule 
and  its  limitation  as  we  state  it.  They 
will  be  found  in  the  approved  treat- 
ises on  evidence,  and  in  the  numer- 
ous cases  cited  by  counsel  on  the  ar- 
gument. In  this  court  the  case  of 
Nicholls  V.  Webb,  reported  in  8 
Whcaton,  32G,  and  that  of  Insurance 
Company   v.   Weide,   reported    in    9 


Wallace,  677,  are  illustrations  of  the 
rule.  In  the  first  case,  it  was  held 
that  after  the  death  of  a  notary,  his 
record  of  protests  was  admissible  upon 
proof  of  his  death  and  handwriting; 
the  court  observing  that  it  was  the 
best  evidence  the  nature  of  the  case 
admitted  of,  that  the  party  being  dead 
his  personal  examination  could  not  of 
course  be  had,  and  that  the  question 
was,  whether  there  should  be  a  total 
failure  of  justice  or  secondary  evidence 
should  be  admitted  to  prove  the  facts. 
In  the  second  case,  the  books  and  led- 
ger of  the  plaintiffs  were  admitted  in 
evidence  to  show  the  amount  and 
value  of  goods  lost  by  the  burning  of 
their  store,  upon  the  testimony  of  the 
parties  who  made  the  entries  that  they 
were  correct,  the  court  holding  that 
the  books  "  would  not  have  been  evi- 
dence per  se,  but  with  the  testimony 
accompanying  them,  all  objections 
were  removed  ;  "  and  referring  to 
cases  decided  iu  the  supreme  court 
and  court  of  appeals  of  New  York, 
in  support  of  the  ruling.  In  both  of 
these  cases  the  entries  were  made  by 
parties  personally  cognizant  of  the 
facts.  This  knowledge  of  the  i)arty 
making  the  entry  is  essential  to  its 
admissibility.  His  testimony,  if  liv- 
ing, would  be  rejected  if  ignorant  of 
the  facts  entered,  and  it  would  be 
strange  if  his  death  could  improve  its 
value  in  that  respect."  Field,  J., 
Chaffee  v.  U.  S.  18  Wall.  541. 

1  Olds  V.  Powell,  10  Ala.  393  ; 
Rutherford  v.  Bank,  14  Ala.  92.  See 
Com.  I'.  Fox,  7  Gray,  585. 

^  See  cases  in  ])rior  sections  ;  and 
§§  525-6;  R.  v.  St.  Martins.  2  Ad.  & 
kl.  215  ;  Watson  v.  Walker,  23  N.  H. 
601 


§  521.] 


THE    LAW    OF   EVIDENCE. 


[book  II. 


offered  to  refresh  memory  are  admissible  independently,  it  is 
error  to  submit  them  to  the  jury.^ 

§  521.  Notes  or  memoranda  to  which  the  memory  of  the  wit- 
ness does  not  immediately  attach,  cannot  be  used  to  re- 
Notcs  must     ,       1      ,  .  TT  /     1  1  1      i  Til  • 

be  pri-  fresli  his  memory.  He  must  be  able  to  say,  "  ilns 
niary.  ^^_^^  ^1^^  paper  made,  or  at  the  time  verified,  by  me, 

as  a  true  record  of  the  events."  An  unverified  copy  of  his  notes 
made  by  some  one  else  is  not  ordinarily  admissible.^  Thus  to 
prove  sales,  the  clerk  who  keeps  the  book  of  original  entries 
should  be  called.^     Even   where   a  person  made  entries   in  an 


471  ;  Tuttle  v.  Robinson,  33  N.  H. 
104  ;  Clark  v.  Vorce,  15  Wend.  193  ; 
Guy  V.  Mead,  22  N.  Y.  462  ;  Mar- 
cly  V.  Schultz,  29  N.  Y.  346;  Reed 
V.  Expr.  Co.  48  N.  Y.  468;  Farmers' 
Bk.  I'.  Boraef,  1  Rawle,  152  ;  Minis 
V.  Sturdevant,  36  Ala.  636. 

^  "  The  bill  of  exceptions  shows  that 
the  delivery  of  the  articles  in  question 
was  not  disputed,  and  that  the  only 
real  issue  in  the  case  was  upon  whose 
order  and  credit  they  were  delivered. 
The  entries  in  the  plaintiff's  book  of 
account  were  not  admissible  on  that 
issue ;  they  were  not  in  the  nature  of 
a  certificate  required  by  law  or  usage, 
but  were  private  memoranda;  and  the 
first  rulinp;,  excluding  the  book,  was 
correct.  Somers  v.  Wi-ight,  114  Mass. 
171.  The  entries  may  doubtless  be 
shown  to  the  witness  to  aid  his  recol- 
lection ;  and  if  they  did  not  appear  to 
have  been  admitted  for  any  other  pur- 
pose, the  exception  to  their  admission 
could  not  be  sustained.  Dugan  v. 
Mahoney,  11  Allen,  572;  Cobb  r.  Bos- 
ton, 109  Mass.  438. 

"  But  the  final  ruling  of  the  learned 
judge,  as  stated  in  the  bill  of  excep- 
tions allowed  by  him,  went  beyond 
this.  It  was  '  that  the  entry  in  the 
book  might  be  regarded  as  a  memo- 
randum made  by  the  plaintiff  at  the 
time,  and,  as  such,  entitled  to  some 
weight  in  confirmation  of  the  recollec- 
tion   and   evidence   of    the   plaintiff' 

502 


upon  the  question  at  issue  between  the 
parties.  This  ruling  was  inconsistent 
with  the  first  one,  and  allowed  to 
these  entries  a  weight  as  evidence,  in 
corroboration  of  the  plaintiff's  testi- 
mony, to  which  they  were  not  legally 
entitled.  Townsend  Bank  v.  Whit- 
ney, 3  Allen,  454  ;  Maine  v.  Harper, 
4  Allen,  115  ;  Bentley  v.  Ward,  116 
Mass.  333  ;  Frew  v.  Donahue,  118 
Mass.  438."  Field  v.  Thompson,  119 
Mass.  152,  153,  Gray,  C.J. 

2  Burton  v.  Plummer,  2  Ad.  &  El. 
341  ;  Bradley  v.  Davis,  26  Me.  45  ; 
Stanwood  v.  McLellan,  48  Me.  275  ; 
State  V.  Shinborn,  46  N.  H.  497;  Kent 
V.  Garvin,  1  Gray,  148;  Davis  v. 
Allen,  9  Gray,  322 ;  Merrill  v.  R.  R. 
16  Wend.  586;  Gould  v.  Conway,  59 
Barb.  355 ;  McCormick  v.  Mulvihill, 
1  Hilton  (N.  Y.),  131  ;  Moore  v. 
Meacham,  10  N.  Y.  207  ;  Gilchrist  v. 
Brooklyn,  59  N.  Y.  495  ;  Farmers' 
Bk.  V.  Boraef,  1  Rawle,  152 ;  Fitler  v. 
Eyre,  14  Penn.  St.  392  ;  Fitzgibbon  v. 
Kinney,  3  Harr.  (Del.)  317;  McDaniel 
V.  Webster,  2  Houst.  305  ;  Green  v. 
Caulk,  16  Ind.  556;  Humphreys  v. 
Spear,  15  111.  275;  Chicago  v.  Adler, 
56  111.  344  ;  Davenport  v.  Cummings, 
15  Iowa,  219  ;  Paine  v.  Sherwood, 
19  Minn.  315  ;  Williams  v.  Kelsey,  6 
Ga.  365  ;  Evans  v.  Boiling,  8  Porter, 
546  ;  Crawford  v.  Bank,  8  Ala.  79. 
See  infra,  §§  682-3. 

8  Bradley    v.    Davis,     26    Me.    49; 


CHAP.  VIII.]  WITNESSES :    REFRESHING    MEMORY.  [§  522. 

account  book  as  such  entries  were  read  to  him  by  another,  from 

memoranda  kept  by  the  latter,  within  whose  knowledge  alone  is 

the  correctness  of  the  charges,  the  entries  are  inadmissible. ^     So 

a  paper  not  written  but  merely  signed  by  a  witness,  who  has  no 

recollection  whatever  of  its  contents,  is  not  evidence,  though  he 

swears  that  he  has  no  doubt  of  the  facts  the  paper  states. ^ 

§  522.  Where  the  entries  were  made  by  a  clerk,  under  the 

witness's  directions  and  in    his    presence,  the  witness   ^ 

.  Not  neces- 

may  use  them  to  refresh  his  memory .'"^     And  a  witness   sarv  that 

may  use  a  memorandum  to  refresh  his  memory,  although  siiouid  be 
it  was  not  made  by  himself,  if  he  saw  the  paper  shortly  ^  witness, 
after  the  event,  and  then  verified  the  accuracy  of  the  entries.* 
It  is  enough  if  the  notes  have  been  made  b}'-  those  with  whom 
the  witness  was  at  the  time  acting,  provided  he  examined  them 
shortly  after  they  were  made,  and  was  then  satisfied  of  their 
accuracy.^  On  the  same  reasoning  a  witness  may  refresh  his 
memory  by  his  deposition  taken  in  a  former  case.**  So  the  read- 
ing of  a  receipt  to  a  third  party  who  assents  to  it,  authorizes  the 
witness  to  refresh  his  memory  by  recurring  to  the  receipt.^  A 
plan  or  survey  of  land  may  be  used  in  the  same  way  ;  ^  and 
so  may  the  printed  copy  of  a  report.^  So  copies  may  be  used 
to  refresh  the  memory  when  the  witness  can  swear  that  these 
copies  correctly  state  contemj)oraneous  events.^*^  Yet  it  is  not 
proper  that  the  copy  should  be  appealed  to,  even  for  the  purpose 
of  refreshing  the  memory,  while  the  original  can  be  produced.^' 
When  lost,  or  non-producible,  then  the  cop}^,  if  verified,  is  ad- 
missible, even  though  it  be  in  print. ^^    On  the  other  hand,  admis- 

Kent  V.  Garvin,  1   Gray,  148;   White  ^  Rainbert   i-.   Cohen,  4  Esp.  213; 

V.  Wilkinson,  12  La.  An.  359.  Bolton  v.  Tonilin,  5  A.  &  E.  8.JG. 

1  Thomas  v.  Price,  30  Md.  483.  «  Cunditl'  c.  Grins,  7  Porter,  58. 

2  Parions  v.  Ins.  Co.  IG   Gray,  463.  »  Home  v.  Mackenzii',  G  C.  &  Fin. 
8  Doe  V.  Perkins,  3   T.  R.  749  ;  R.  G28. 

V.    St.    Martin's,    2    Ad.    &    El.  215;  ^o  Sec  R.   c.  Hedges,  28  How.  St. 

Stephen's  Ev.  128  :  2  Phil.  Ev.   480;  Tr.  1387;  Tanner  v.  Taylor,  cited  in 

State  V.  Lull,  37  Me.  246.  Doe  v.  Perkins,  3  T.  R.  754;  Chicago 

*  Coflin  V.  Vincent,   12  Cash.   98  ;  R.  R.  v.  Adler,  56  111.  344;  Madigan 

HilU.  State,  17  Wise.  G 75.  i-.   De    (iralT,    17    Minn.   52;     Hill    v. 

6  Anderson  v.  Whalley,  3   C.  &  K.  State,  17  Wise.  675. 

54;    Burrough    v.    Martin,    2    Camp.  i'   Hinton    r.   Phimnier,   2    A.  &   E. 

112;  Berry  w.  Jourdan,    11   Rich.  (S.  344. 

C.)  67.  12  Tophain  c  Macgregor,  1  C.  &  K. 

6  See  infra,  §  524.  320;   Home  v.  M.ickenzic,  6  CI.  &  F. 

503 


§  522.] 


THE  LAW  or  EVIDI':NCE. 


[book  II. 


sion  has  been  refused  to  a  newspaper  account  of  a  transaction  in 
litigation,  the  accounts  having  been  prepared  from  reports  re- 
ceived on  the  day  and  at  the  place  of  the  accident ;  it  appearing 
that  the  author,  having  been  examined  as  a  witness,  testified  he 
talked  with  the  plaintiff  and  others  about  it,  and  supposed  he 
learned  the  facts  from  them,  but  liad  no  distinct  recollection  of 
what  was  said,  and  could  not  tell  from  whom,  principally,  he 
received  his  information.^ 


628  ;  Filkins  v.  Baker,  6  Lansing, 
516. 

^  "  The  article  did  not  purport  to 
be,  and  was  not,  in  truth,  a  statement 
of  a  conversation  with,  or  declarations 
made  by,  the  plaintiff,  and  was  not  a 
memorandum  made  by  the  witness,  of 
a  particular  conversation  at  or  near 
the  time  it  was  had,  and  which  the 
witness  could  state  under  oath  was 
a  correct  memorandum  of  such  con- 
versation. It  was  not,  therefore,  com- 
petent as  evidence  of  a  statement 
made  by  the  plaintiff,  material  to  the 
issue,  or  inconsistent  with  his  testi- 
mony on  the  trial.  The  printed  pa- 
per was  not  the  original  memorandum 
made  by  the  witness;  neither  did  he 
nor  could  he,  testify  that  the  article 
or  the  copy  from  which  it  was  printed 
was  a  correct  memorandum  or  repro- 
duction of  the  statement  of  the  plain- 
tiff, and  it  is  not  within  the  principle 
of  any  of  the  cases  relied  upon  by  the 
defendant.  In  all  the  cases,  the  orig- 
inal memoranda  have  been  produced, 
and  the  persons  by  whom  they  were 
made  have  vouched  for  their  correct- 
ness. Guy  V.  Mead,  22  N.  Y.  462  ; 
Halsey  v.  Sinsebaugh,  15  N.  Y.  485  ; 
Russell  V.  E.  R.  17  Ibid.  134.  The 
article  was  but  a  summary  of  the  facts 
collected  by  the  writer  from  all  sources, 
or  rather  of  his  understanding  of  the 
facts."  Allen,  J.,  Downs  v.  R.  R,  47 
N.  Y.  87. 

"  A  copy  of  an  entry  made  by  him- 
self, or  by  any  other  person,  may  be 

504 


used  by  a  witness  to  refresh  recollec- 
tion ;  Marcly  v.  Schultz,  29  N.  Y. 
346 ;  and  the  original  memorandum 
may  be  read  in  evidence,  if  made  at 
or  near  the  time  when  a  material  fact 
to  which  it  relates  occurred,  and  the 
witness  producing  it  can  swear  that  it 
was  made  correctly,  though  he  cannot 
then  recollect  the  facts  contained  in 
it.  Halsey  v.  Sinsebaugh,  15  N.  Y. 
485.  But  a  copy  of  a  memorandum 
cannot  be  read  as  evidence  of  the  con- 
tents of  it.  29  N.  Y.,  supra.  Though 
the  testimony  as  given  in  the  appeal 
book  is  confused  as  to  the  various 
memoranda  produced  on  the  trial,  it 
is  evident  that  the  memoranda  first 
made  by  the  plaintiff  and  those  help- 
ing him  were  destroyed,  and  that  the 
papers  exhibited  to  the  Avitnesses  were 
prepared  from  them ;  but  it  does  not 
appear  that  they  were  literally  copies. 
It  seems  that  in  preparing  the  list  of 
articles  in  the  different  lost  trunks  the 
memories  of  those  engaged,  princi- 
pally that  of  the  wife  of  the  plaintiff, 
were  set  at  work,  and,  as  articles  were 
brought  to  recollection  from  the  bills 
of  the  purchase  of  them,  and  other- 
wise, they  were  set  down  upon  paper; 
different  pieces  of  paper  it  would  ap- 
pear. When  this  process  was  com- 
pleted, the  contents  of  those  papers 
were  transcribed  in  gross.  These 
were  the  completed  and  corrected 
memoranda,  and  substantially  the 
original  memoranda.  It  was  as  to 
these  that  the  plaintifiTs  wife  testified 


CHAP.  VIII.]  WITNESSES :   REFRESHING  MEMORY.  [§  524. 

§  523.  The  fact  that  memoranda  are  not  made  contempora- 
neously with  the  event  is  fatal  to  their  admissibility,    Mfimoran- 
unless  made  when  the  memory  is  fresh. ^     This  is  emi-    nfissHjYe'jf 
nently  the  case  when  the  concoction  is  in  view  of  liti-   ^ubse- 

''  _  quently 

gation.2  Thus  where  a  witness  who  had  noted  down  concocted, 
the  transactions  at  their  occurrence  asked  the  solicitor  of  the 
part}'-  calling  her  to  put  her  notes  into  the  form  of  minutes, 
which  she  afterwards  revised  and  transcribed,  Lord  Hardwicke, 
on  discovering  that  she  had  recourse  to  these  minutes  to  refresh 
her  memory,  suppressed  her  deposition.^  So,  where  a  witness 
had  drawn  up  a  paper  for  the  party  calling  him,  after  the  cause 
was  set  down  for  trial,  though  eighteen  months  before  the  trial 
was  actually  heard,  the  court  would  not  allow  him  to  refer  to  it.* 
But  if  there  is  no  suspicion  of  concoction,  the  fact  that  the  doc- 
ument used  to  refresh  memory  was  not  prepared  for  some  weeks 
after  the  event  will  not  exclude  such  document,  if  the  delay, 
under  the  circumstances  of  the  case,  was  natural  and  proper.^ 

§  524.  Depositions,  signed  or  otherwise  attested  by  a  witness, 
can  be  used  for  the  same  purpose.*"    Indeed,  it  has  even    Depositions 

been  ruled  that  witnesses,  testifying  as  to  a  trial,  can    '"^^  ^^ 

'•''-'  used  to  re- 

refresh  their  memories  by  the  notes   taken  by  counsel    f'esh  the 

at    the  trial,  provided  that  afterward  they  can  speak 

from  recollection,  and  not  solely  from  the  notes.'^     Where  depo- 

that  she  knew  all  the  articles  named  llunnewell,  G  Pick.  222;  Downs  v.  E,. 
in  them  were  in  the  trunks.     We  do  R.  47  N.  Y.  82  ;  Kendall  v.    Stone,  2 
not  understand  that  the  memoranda  Sandf.  (N.  Y.)   269  ;  Spring  Ins.  Co. 
were  read  to  the  jury  as  evidence  of  ?;.    Evans,    15    Md.   54;    Prather    v. 
themselves  of  what  were  the  contents  Pritchard,  2G  Ind.  65. 
of  the  lost  trunks,  but  only  a  state-         ^  Steinkeller  v.  Newton,  supra, 
ment  on  paper,  in  detail,  of  what  this         ^  Anonymous,  cited   by  Lord  Ken- 
witness  had  testified  were  the  articles  yon  in  Doe  v.  Perkins,  3  T.  R.  752. 
contained  in  the  trunks.     In  this  view         *  Steinkeller  v.  Newton,  9  C.  &   P. 
the  memoranda  were  competent."  Fol-  31.j,  Tindal,  C.J. 
ger,  J.,  McCormick  v.  R.  R.  49  N.  Y.         ^  Vaughan  v.  Martin,  1  Esp.  410. 
315.  6  Vaughan  v.  Martin,  I   Esp.  440  ; 
1  Burrough  V.  Martin,  2  Camp.  112;  Wood   v.    Cooper,    1    C.    &   K.    645; 
Wood  V.  Cooper,  1  C.  &  K.  645;  Smitli  State  c.  Lull,  37  Me.  2-16  ;  George  i;. 
V.  Morgan,   2   M.  &  Rob.   257;  U.  v.  Joy,  19  N.  II.  544  ;  Iglehart  v.  Jerne- 
Kinloch,  25  How.   St.  Tr.  934;  Jones  gan,  16   111.   513;   Barney   t'.  Ball,  24 
V.  Stroud,  6   C.  &  P.  196;  Steinkeller  Ga.  505;  Cobb  v.  State,  27    Ga.  648; 
V.  Newton,  9  C.  &  P.  315;  Welcome  Atkins  v.  State,  16  Ark,  568. 
V.  Batchelder,   23  Me.  85;  Glover  v.         ''  Lawes  v.  Reed,  2  Lew.  C.  C.  152. 

505 


§  526.] 


THE   LAW   OF  f:VIDENCE. 


[book  II. 


sitions  of  witnesses  before  a  coroner's  jury  are  to  be  proved,  the 
coroner's  clerk,  after  testifying  that  he  had  taken  down  the  tes- 
timony of  each  witness  correctly,  has  been  permitted  to  state 
the  evidence  from  the  depositions  themselves,  not  being  required 
to  state  the  evidence  from  his  memory  as  refreshed  by  the  depo- 
sitions.^ But  it  has  been  held,  that  in  a  criminal  trial  the  pros- 
ecution cannot  ask  one  of  its  witnesses  to  recur  in  his  own  mind 
to  his  testimony  before  the  grand  jury  and  thus  refresh  his 
memor}'.^ 

The  opposing  party  is  not  entitled  to  inspect  a  paper 
put  into  the  witness's  hands  to  refresh  his  memory,  but 
which  fails  to  have  that  effect.^  But  where  the  wit- 
ness depends  upon  the  writing  for  the  revival  of  his 
recollections,  the  opposite  party  is  entitled  to  see  the 
paper,  and  to  cross-examine  on  the  same.'*  The  court, 
however,  may  limit  this  right  of  inspection  to  such  por- 
tions of  a  paper  as  are  relevant.^  But  when  the  paper  is  thus  rec- 
ognized by  the  party  as  true,  or  when  it  is  cross-examined  upon 
by  the  other  side,  as  to  its  meaning  (its  adoption  as  true  by  the 
witness  not  being  disputed),  then,  unless  for  other  reasons  inad- 
missible,^ it  may  go  to  the  jury.'^ 

It  is  within  the  discretion  of  the  court  to  determine  whether  a 
party  may  cross-examine  the  witness  on  the  paper  before  it  is 
used  by  the  witness.^ 

§  526.  The  opposing  party  may  make  the  paper  his  own  evi- 
Opposing  dence  by  examining  the  witness  as  to  the  whole  of  it, 
put  th™^^     provided  nothing  in  the  examination  casts  discredit  on 

R.  V.  Philpotts,  5  Cox  C.  C.  329;  v.  Jones,  5  C.  B.  696;  Pembroke  r. 
Henry  v.  Lee,  2  Chit.  R.  124;  Stetson  AUenstown,  41  N.  H.  365.  See  Com. 
V.  Godfrey,  20  N.  H.  227  ;  Beaubien     v.  Lannan,    13  Allen,   563;    Harrison 


Opposing 
party  not 
entitled  to 
inspect 
notes 
which  fail 
to  refresh 
memory. 


V.  Cicotte,  12  Mich.  459.  See  Harvey 
V.  State,  40  Ind.  516. 

1  Stephens  i;.  People,  19  N.  Y.  549. 

a  Com.  V.  Phelps,  11  Gray,  73.  See 
Burdick  v.  Hunt,  43  lud.  381.  Infra, 
§601. 

3  R.  V.  Duncombe,  8  C.  &  P.  369; 
Lord  V.  Colvin,  5  De  Gex,  M.  &  G.  47. 

*  R.  V.  St.  Martins,  2  A.  &  E.  215; 
Loyd  V.  Freshfield,  2  C.  &  P.  232; 
Russell  V.  Ryder,  6  C.  &  P.  416; 
Lord  V.  Colvin,  2  Drew.  205;  Beech 

506 


V.  Middleton,  11  Grat.  527  ;  McKivitt 
V.  Cone,  30  Iowa,  455.  See,  however. 
Trustees  v.  Bledsoe,  5  Ind.  133;  State 
V.  Cheek,  13  Jred.  L.  114;  Hamilton 
V.  Rice,  15  Tex.  382. 

6  Com.  V.  Haley,  13  Allen,  587.  See 
Burton  v.  Plummer,  2  Ad.  &  El.  341; 
Sinclair  v.  Stevenson,  1  C.  &  P.  582; 
10  Moore,  216. 

^  See  supra,  §  519. 

'  See  cases  cited  to  §§  516,  526. 

8  Com.  V.  Burke,  114  Mass.  261. 


CHAP.  VIII.]  WITNESSES  :    CROSS-EXAMINATION.  [§  528. 

it ;  ^  but  it  is  otherwise  where  he  simply  cross-exam-   y^^ole  of 

^    •'  ,  the  notes 

ines  the  witness  as  to  the  memorandum  on  wliich  the   in  cvi- 

.,  TO  dence. 

Witness  renes.'^ 

X.  CROSS-EXAMINATION. 

§  527.  Supposing  a  witness  to  be  unwilling,  or  at  least  not 
a  willing   witness    on    behalf    of   the    cross-examining    Oncross- 
party,^  the  party  cross-examining   is    entitled    to   put   ^j^n"iead' 
such  leading  questions  as  will  draw  out  positive  answers   1"^,^^'^^', 
of  yes  or  no,  and  also,  subject  to  the  exceptions  here-    be  put. 
after  stated,  may  show  bias  in  the  witness.*     The  witness  may 
be  also  required  to  give  the  details  of  any  incidents  referred  to 
by  him  in  his  examination  in  chief. ^ 

§  528.  It  has  been  already  noticed  that  the  examination  of  an 
unwilling  witness  can  be  made  more  or  less  persistent    closeness 
and  exhaustive  at    the  discretion  of   the    court.     The    cxainina- 
riffht  to  exercise  this  discretion  is  peculiarly  im]>ortant    "onatdis- 

"  _         _  .  .  cretion  of 

on  cross-examinations.  There  are  cases  in  which,  even  court, 
in  jurisdictions  in  which  a  party  is  ordinarily  precluded  from 
cross-examining  as  to  new  matter,  it  is  essential  to  justice  that 
new  matter  should  be  introduced  on  cross-examination.  There 
are  other  cases  in  which,  when  fraud  or  mistake  are  probable 
though  not  proved,  it  is  proper  to  give  counsel  great  latitude  so 
that  the  fraud  or  mistake,  if  there  be  such,  should  be  tracked. 
Much,  also,  depends  upon  the  attitude  of  the  witness;  much  on 
tluit  of  the  cross-examining  counsel.  In  view  of  these  consider- 
ations, courts  of  review  are  unwilling,  except  in  extreme  cases, 
to  reverse  a  ruling  as  to  the  limits  in  the  concrete  of  a  cross- 
examination.*^ 

1  Gregory  v.  Tavcrner,  6   C.    &  P.     magiin  v.  Bradsliaw,  39  Cal.  24  ;  'Wiii- 
281.  torr.  Burt,  ,31  Ala.  33. 

2  Ibid.;  R.  V.  Ranisden,  2  C.  &  P.         ^  Motzer   v.    State,    30    Ind.    596  ; 
GOl.  Biirghart  t-.  Brown,  51  Mo.  GOO. 

8  Sec,    as     indicating     rostriftions  ^  New  Gloueester  r.  Bridgliani,  28 

where    the   witness    is    hostile   to   the  Me.  GO;  Thompson  r.  Smiley,  50  Me. 

party  calling  him,  Taylor's  Kv.§  1288;  G7;    State    v.    Kimball,    50    Me.    409; 

Moody  r.  Rowell,  17  Pick.  498.  Bishop  v.  Wheeler,  4G  Vt.  409;  Stcene 

*  Parkin  v.  Moon,  7  C.  &  P.  409;  v.  Aylesworth,  18  Conn.  244;  Moody 

Terry  v.  McNiel,  58  Barb.  241;  Bat-  v.  Rowell,  17  Pick.  490;  Rand  v.  New- 

dorff    V.    Bank,    Gl     Penn.    St.    179;  ton,  6  Allen,  38 ;  Prescott  i\  Ward,  10 

Brown  r.  State,  18  Oh.  St.  49G;  Bni-  Allen,   203;    Com.  v.  Quin,  5   Gray, 

507 


§  529.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


§  529.  Although  in  England,  counsel,  in  cross-examination, 
-^yjf^ggg  are  permitted  to  ask  questions  bearing  on  the  whole 
can  only  case,  SO  as  to  bring  out  matters  of  independent  defence,^ 
examined     in   tliis  couutrv,  in   most  iurisdictions,  cross-examina- 

on  the  sub-       .  ''  ."'  r>i  ^  ^  • 

jectof  his  tions.  With  greater  propriety,  are  confined  to  the  subject 
tion  in  "  of  the  examination  in  chief,  and  that  of  the  credit  of 
^  '^^'  the  witness.     If  a  matter  of  defence  is  to  be  proved, 

this  must  be  reserved  until  the  cross-examining  party  has  opened 
his  case,  when  he  is  at  liberty  to  call  the  witness  to  prove  such 
defence.^  In  several  states,  however,  this  limitation  of  the  range 
of  cross-examination  is  not  applied.^  In  any  view,  the  right  of 
cross-examination  extends  to  all  matters  connected  with  the  res 
gestae.^ 


478;  Wallace  v.  R.  R.  119  Mass.  91; 
Great  West.  Co.  v.  Loomis,  32  N.  Y. 
127;  La  Beau  v.  People,  34  N.  Y. 
223;  Wells  v.  Kelsey,  37  N.  Y.  143; 
West  V.  State,  22  N.  J.  L.  212  ;  Clark 
V.  Trinity  Church,  5  Watts  &  S.  266; 
Elliott   V.    Boyles,   31    Penn.    St.   65; 


Chicago  r.  R.  R.  36  111.  60  ;  Bell  v. 
Prewitt,  62  111.  362;  Drohn  v.  Brew- 
er, 77  111,  280;  Cokely  v.  State,  4 
Iowa,  477;  Wilbelmi  v.  Leonard,  13 
Iowa,  330;  Cougar  v.  .  R.  17  Wise. 
4  77;  Beaulien  v.  Parsons,  2  Minn.  37; 
Sumner?;.  Blair,  9  Kans.  521;  Fergu- 


Flagg  V.  Searle,   1   Weekly  Notes  of  son  v.  Rutherford,  7  Nev.  385;  Brown 

Cases,  290  ;  Legg  i'.  Drake,  1  Oh.  St.  v.  State,  28  Ga.  199;  though  see  White 

286  ;  Young  v.  Bennett,  4  Scam.  43  ;  v.  Dinkins,  19  Ga.  285;  McClelland  v. 

Toledo  R.  R.  v.  Williams,  77  111.  354;  West,   70   Penn.  St.  183;    Malone  v. 

Floyd  y.  Wallace,  31  Ga.  688;  Winter  Dougherty,    79  Penn.   St.   48;  Aiken 

V.  Burt,  31  Ala.  33;  Carmichael,  in  re,  v.  Mendenhall,  25  Cah  212;  People  v. 


36  Ala.  514;  Missouri  R.  R.  v.  Haines, 

10  Kans.    439;    Dale    v.    Blackburn, 

11  Kans.  190;  Thornton  v.  Hook,  36 
Cal.  223.  See  Am.  Law  Rev.  Jan. 
1877,  396. 

1  Murphy  v.  Brydges,  2   Stark.  R. 
314. 


Miller,  33  Cal.  99;  Austin  v.  State, 
14  Ark.  555. 

3  Moody  V.  Rowell,  17  Pick.  490, 
498;  Com.  v.  Morgan,  107  Mass.  204; 
Jackson  o.  Varick,  7  Cow.  238;  Ful- 
ton Bank  v.  Stafford,  2  Wend.  483; 
Wroe  V.  State,  20  Oh.   St.  460;  Fra- 


2  Houghton  V.  Jones,  1   Wall.  702;     lick  v.  Presley,  29   Ala.  457;  Mask  v. 


Phil.  &  Trenton  R.  R.  v.  Stimpson,  14 
Pet.  448  ;  Seavy  v.  Dearborn,  1 9  N. 
H.  351 ;  Donnelly  v.  State,  26  N.  J.  L. 
463,  601;  EUmaker  v.  Buckley,  16  S. 
&  R.  77;  Farmers' Bk.  v.  Strohecker, 
9  Watts,  237;  Castor  v.  Bavington,  2 
Watts  &  S.  505;  Floyd  i'.  Bovard,  6 
W.  &  S.  77;  Helser  v.  McGrath,  52 
Penn.  St.  531;  People  v.  Horton,  4 
Mich.  67;  Campau  v.  Dewey,  9  Mich. 
381;  Patton  v.  Hamilton,  12  Ind. 
256;  Aurora  v.  Cobb,  21  Ind.  492; 
508 


State,  32  Miss.  405;  State  v.  Sayers, 
58  Mo.  585  ;  O'Donnell  v.  Segar,  25 
Mich.  367;  Haynes  t;.  Ledyard,  33 
Mich.  319. 

*  Markley  v.  Swartzlander,  8  Watts 
&  S.  172;  Rhodes  v.  Com.  48  Penn. 
St.  396.  See,  to  the  eflect  that  the 
order  of  testimony,  is  at  the  discretion 
of  the  court,  Seibert  v.  Allen,  61  Mo. 
482;  Rankin  v.  Rankin,  61  Mo.  295; 
Merrill  v.  Nightingale,  39  Wise.  247, 


CHAP.  VIII.]  WITNESSES  :    CROSS-EXAMINATION. 


[§  530. 


§  530.  The  conflict,  however,  which  has  just  been  stated,  may- 
be reduced  by  remembering  that  a  witness,  in  testifying  to  the 
case  of  the  party  who  calls  him,  impliedly  warrants  his  own 
truthfulness  of  narration,  and  may,  as  we  will  presently  see,  be 
cross-examined  not  only  as  to  whatever  touches  this  truthfulness, 
but  as  to  whatever  goes  to  explain  or  modify  what  he  has  stated 
in  his  examination  in  chief.^  But  in  any  view,  a  witness  may 
be  cross-examined  as  to  his  examination  in  chief  in  all  its  bear- 
ings. Thus  a  subscribing  witness  to  a  will  may  be -cross-ex- 
amined as  to  the  testator's  sanity.^  When  a  witness  is  re- 
called by  B.  to  substantiate  B.'s  case,  the  witness  having  been 
originally  called  by  A.,  A.  on  the  second  examination,  is,  from 
the  nature  of  the  case,  entitled  to  cross-examine,  though  with  a 
liberty  as  to  leading  questions  to  be  determined  by  the  circum- 
stances of  tiie  case  and  the  bias  of  the  witness.^ 

1  Wilson  V.  Wagar,  26  Mich.  452.  «  Malone  v.  Spilessy  Ir.  Cir.  Ct.  504, 

2  Egbert  v.  Egbert,  78  Penn.  St.  cited  Taylor's  Ev.  §  1290;  Lord  v. 
32G.  "  All  that  occurred  at  the  exe-  Colvin,  3  Drew.  222.  See  infra,  §  549. 
cution  of  the  will,"  said  Paxson,  J.,  On  the  tone  of  cross-examination  a 
"  including  the  physical  and  mental  standard  authority  thus  speaks  :  — 
condition  of  the  testator  at  the  time,  "It  is  often  a  convenient  way  of 
was  proper  for  cross-examination.  A  examining  to  ask  a  witness  whether 
testator  may  be  so  weak  physically  as  such  a  thing  was  said  or  done,  because 
to  be  unable  to  write  his  name;  he  the  thing  mentioned  aitls  his  recoUec- 
may  if  necessary  call  upon  some  one  tion,  and  brings  him  to  that  stage  of 
to  sign  the  will  for  him,  or  to  hold  his  the  proceedings  on  which  it  is  desired 
hand  while  he  traces  his  signature  ;  that  he  should  dilate.  But  this  is  not 
his  mind  may  be  so  clouded  by  disease  always  fair;  and  when  any  subject  is 
or  approaching  dissolution,  or  it  may  approached,  on  which  his  evidence  is 
be  so  impaired  by  intemperance  or  expected  to  be  really  important,  the 
other  vices,  as  to  be  incapable  of  form-  proper  course  is  to  ask  him  what  was 
ing  an  intelligent  or  connected  thought,  done,  or  what  was  said,  or  to  tell  his 
It  is  cleai'ly  the  right  of  parties  con-  own  story.  In  this  way.  also,  if  the 
testing  a  will  to  inquire  into  such  witness  is  at  all  intelligent,  a  more 
matters,  upon  the  cross-examination  consistent  and  intelligible  statement 
of  the  subscribing  witnesses.  Nor  is  will  generally  be  got,  than  by  putting 
this  a  departure  from  the  familiar  rule  separate  questions;  for  the  witnesses 
of  evidence,  that  a  defendant  who  has  generally  think  over  the  sul)jects  on 
not  opened  his  case  will  not  be  al-  which  they  arc  to  be  examined  in 
lowed  to  introduce  it  to  the  jury  by  criminal  cases  so  often,  or  tliey  have 
cross-examining  the  witnesses  for  the  narrated  them  so  frecjucntly  to  others, 
adverse  party,  for  the  reason,  as  before  that  they  go  on  much  more  lluently 
stated,  that  the  mental  condition  of  a  and  distinctly,  when  allowed  to  follow 
testator  at  the  time  of  the  execution  the  current  of  their  own  ideas,  than 
of  his  will  is  a  part  of  the  res  gestae."  whec  they  arc  at  every  moment  inter- 

609 


§  631.] 


THE   LAW    OF   EVIDENCE. 


[book  II. 


§  531.  As  has  already  been  seen,  the  present  English  practice 
Witness's  is  to  permit  counsel,  on  cross-examining  a  witness  as  to 
may  be"  previous  statements  made  by  him  in  writing,  to  inter- 
probed  b}'  rotate  the  witness  as  to  such  writing  without    previ- 

wntten  in-  »                                           ,        ,                                '^                         ^ 

strumcnt.  ously  exhibiting  to  hira  its  contents.^     At  common  law 
this  right  is  not  allowed.^ 


ruptcd  or  diverted  by  the  examining 
counsel.  Where  a  witness  is  evidently 
prevaricating  or  concealing  the  truth, 
it  is  seldom  by  intimidation  or  stern- 
ness of  manner  that  he  can  be  brought, 
at  least  in  this  country,  to  let  out  the 
truth.  Such  measures  may  sometimes 
terrify  a  timid  witness  into  a  true  con- 
fession ;  but  in  general  they  only  con- 
firm a  hardened  one  in  his  falsehood, 
and  give  him  time  to  consider  how 
seeming  contradictions  may  be  recon- 
ciled. The  most  effectual  method  is 
to  examine  rapidly  and  minutely,  as  to 
a  number  of  subordinate  and  appar- 
ently trivial  points  in  his  evidence, 
concerning  which  thei-e  is  little  likeli- 
hood of  his  being  prepared  with  false- 
hood ready  made;  and  where  such  a 
course  of  interrogation  is  skilfully 
laid,  it  is  rarely  that  it  fails  in  ex- 
posing   perjury    or   contradiction,    in 


way  the  most  important  testimony  in 
a  case  is  extracted  from  the  most  un- 
willing witness,  which  only  comes  with 
the  more  effect  to  an  intelligent  jury, 
because  it  has  emerged  by  the  force 
of  examination  in  opposition  to  any 
obvious  desire  to  conceal."  Alison, 
Pract.  of  Cr.  L.  546,  547.  "The 
late  Lord  Abinger,  whose  powers  as 
a  cross-examining  counsel  were  un- 
rivalled, was  fond  of  giving  his  jun- 
iors this  advice :  "  Never  drive  out 
two  tacks  by  trying  to  hammer  in  a 
nail." 

Cross-examination  as  to  bias  is 
hereafter  noticed,  infra,  §  545. 

^  See  supra,  §  68. 

2  See,  fully,  §  68.  Romertze  v. 
Bank,  49  N.  Y.  57  7;  People  v.  Don- 
ovan, 43  Cal.  162. 

"  In  Holland  v.  Reeves,  7  C.  &  P. 
39,  a  party  put  a  document  into  the 


some  parts  of  the  testimony,  which  it  hands  of  an  adverse  witness,  and  cross- 
is  desired  to  overturn.  It  frequently  examined  him  upon  it,  whereupon  he 
happens  that,  in  the  course  of  such  a  was  required  by  the  opposite  counsel 
rapid  examination,  facts  most  material  to  have  it  read  forthwith;  but  Alder- 
to  the  cause  are  elicited,  which  were  son,  B.,  held  that  the  cross-examining 
either  denied,  or  but  partially  admitted  party  was  not  bound  to  put  in  the 
before.  In  such  cases,  there  is  no  good  document  until  he  had  opened  his  own 
ground,  on  which  the  facts  thus  reluc-  case.  It  woidd  seem,  however,  in  such 
tantly  extorted,  or  which  have  escaped  a  case,  that  the  opposite  counsel  would 
the  witness  in  an  unguarded  moment,  have  a  right  to  inspect  the  document, 
can  be  laid  aside  by  the  jury.  With- 
out doubt  they  come  tainted  from  the 
polluted  channel  through  which  they 
are  adduced ;  but  still  it  is  generally 


in  order  to  found  questions  upon  it  in 
reexamination."  Taylor's  Ev.  §  1270. 
note. 

In  Kitchen  l-.  R.  R.  59  Mo.  514,  it 
easy  to  distinguish  what  is  true  in  such     was  said  that  counsel  cannot  read  his 


depositions  from  what  is  false,  because 
the  first  is  studiously  withheld,  and 
the  second  is  as  carefully  put  forth; 
and  it  frequently  happens,  that  in-  this 

510 


former  deposition  to  a  witness,  and 
then  put  the  question,  whether  the 
statements  contained  therein  are  true, 
unless  on  a  proper  foundation  laid  for 


CHAP.  YIII.] 


WITNESSES  :    SELF-CRIMINATION. 


[§  534. 


§  532.  For  the    mere    purpose  of   probing  memory,    Collateral 

however,  a  witness  cannot  be  cross-examined  as  to  col-   |Jo"'i^e  j 

lateral  matters,  unless   the  effect  of  the  testimony,  if   troduced  to 

•^ '        test  mem- 
rendered,  would  go  to  prove  bias  or  falsity.^  ory. 

§  533.  A  watness,  such  is  one  of  the  most  cherished  sanctions 
of  Anglo-American  law,  will  not  be  compelled  to  an-  Witness 
swer  any  question  the  answer  to  which  would  be  a  link 
in  a  chain  of  evidence  by  which  he  could  be  convicted 
of  a  criminal  offence.^  The  same  rule  holds  in  equity.^ 
The  privilege  extends  to  inculpatory  documents.*  Neither  hus- 
band nor  wife  is  compelled  to  answer  questions  involving  the 
other's  criminality.^  Refusal  to  answer,  however,  may  be  used 
as  a  presumption  against  a  witness  so  refusing.^ 

§  534.    So,  also,  a  witness  will  be  relieved  from  answering  a 


will  not  be 
compelled 
to  crimi- 
nate him- 
self. 


that  purpose  he  designs  to  show  some 
inconsistency  in  the  deposition,  or  to 
impeach  the  credibility  of  the  wit- 
ness. Whether  the  deposition  may  be 
used  to  save  time  in  asking  questions, 
is  a  matter  purely  in  the  discretion 
of  the  court,  which  cannot  be  re- 
viewed in  the  supreme  court. 

1  U.  S.  V.  Hudland,  5  Cranch  C.  C. 
309;  Com.  i'.  Shaw,  4  Cush.  593; 
Holbrook  v.  ])o\v,  12  Gray,  357  ;  Law- 
rence V.  Barker,  5  Wend.  301;  Iron 
Mountain  Bk.  v.  Murdock,  (J2  Mo. 
70 ;  though  see  Ross  v.  Hayne,  3 
Greene,  211.     Infra,  §  545. 

2  R.  V.  Friend,  13  IIow.  St.  Tr.  IG; 
R.  V.  Macclesfield,  16  How.  St.  Tr. 
1146;  Gates  v.  Hardacre,  3  Taunt. 
24;  R.  V.  Shaney,  5  C.  &  P.  213;  Ma- 
loney  v.  Bartley,  3  Camp.  210 ;  Ches- 
tler  V.  Wortley,  7  C.  B.  410  ;  1  Burr's 
Trial,  244;  Neale  v.  Cuningham,  1 
Cranch  C.  C.  76  ;  U.  S.  v.  Moses,  1 
Cranch  C.  C.  170;  U.  S.  i'.  Strother, 
3  Cranch  C.  C.  432;  Low  v.  Mitch- 
ell, 18  Mc.  372;  State  v.  Blake,  25 
Me.  350;  State  v.  K.  4  N.  Ilamp.  5(52; 
Coburn  v.  Odell,  30  N.  H.  540;  Cham- 
berlain I'.  Wilson,  12  Vt.  491;  Brown 
V.  Brown,  5  Mass.  320 ;  Com.  v.  Kim- 
ball, 24    Pick.   366.      See    Phelin    v. 


Kenderdine,  20  Penn.  St.  354;  Peo- 
ple r.  Mather,  4  Wend.  229;  People 
V.  Rector,  19  Wend.  569;  Southard 
V.  Rexlord,  6  Cow.  254;  Tappan,  in 
re,  9  IIow.  Pr.  394  ;  Byass  v.  Sul- 
livan, 21  How.  Pr.  50 ;  Warner  v. 
Lucas,  10  Ohio,  336;  Howel  i^.  Com. 
5  Grat.  664;  Poindexter  c.  Davis,  6 
Grat.  481;  Lister  v.  Boker,  6  Blackf. 
439;  Printz  v.  Cheney,  11  Iowa,  469; 
Hopkins  v.  Olin,  23  Wise.  309;  Sim- 
mons y.  Holster,  13  Minn.  249;  Hig- 
don  r.  Heard,  14  Ga.  255  ;  Pleasant 
V.  State,  15  Ark.  624;  State  r.  Mar- 
shall, 36  Mo.  400;  Lea  v.  Henderson, 
1  Coldw.  146.  In  New  York,  by  the 
Revised  Code,  the  protection  is  lim- 
ited to  cases  of  felony.  Rev.  Code, 
§  1854. 

8  Macullura  v.  Turton,  2  Y.  &  J. 
183;  Claridge  v.  Iloare,  14  Ves.  59; 
Paxton  V.  Douglass,  19  Ves.  225; 
Hayes  t'.  Caldwell,  5  Gilman,  33. 

*  See  infra,  §  751.  Byass  t".  Sulli- 
van, 21  IIow.  N.  Y.  Pr.  50. 

''  Cartwright  r.  Green,  8  Ves.  405; 
R.  t'.  All  Saints,  C  M.  &  Sel.  200. 
See  supra,  §  432. 

0  Andrews  v.  Fryc,  104  Mass.  234. 
Infra,  §  546. 

611 


§  535.] 


THE   LAW    OF    EVIDENCE. 


[book  II. 


Nor  to  ex- 
pose him- 
self to  a 
fine  or  to 
forfeiture. 


question  a  reply  to  wliicli  might  expose  liim  to  a  forfeiture  of 
his  estate. 1  Nor  does  it  make  a  difference  that  the 
penalties,  in  a  penal  prosecution,  are  limited  to  a  fine.^ 
Thus  a  party  will  be  protected  from  giving  an  answer 
which  exposes  him  to  a  prosecution  for  usury. ^ 
§  535.  A  party  cannot  interpose  the  objection  that  the  an- 
Privilege  swer  will  expose  the  witness  to  punishment.  The 
claimed  by  P^'i^ilege  must  be  claimed  by  the  witness  in  order  to  be 
witness.  available.*  The  judge  is  not  bound  to  notify  the  wit- 
ness of  his  privilege  in  this  relation,^  though  he  may  at  his  dis- 
cretion give  an  intimation  to  this  effect.^ 


^  Parkhurst  v.  Lowten,  1  Mer.  401  ; 
Uxbridge  v.  Staveland,  1  Ves.  Sr.  56. 

2  Anderson  v.  State,  7  Ohio  (Part 
ii.),  250. 

'  Bank  of  Saline  v.  Henjy,  2  Dc- 
nio,  155 ;  Curtis  v.  Knox,  2  Denio, 
341  ;  Henry  v.  Bank,  3  Denio,  593. 
See  Mitford's  Eq.  PI.  157  ;  Parkhurst 
V.  Lowten,  1  Mer.  401  ;  and  see  infra, 
§537. 

4  R.  V.  Adey,  1  M.  &  Rob.  94  ; 
Tliomas  v.  Newton,  M.  &  M.  48,  n.  ; 
Fislier  v.  Ronalds,  12  C.  B.  764  ; 
Marston  v.  Downes,  1  A.  &  E.  34 ; 
State  V.  Foster,  3  Foster  (X.  H.),  348; 
Com.  V.  Shaw,  4  Cush.  594  ;  Ward  v. 
People,  6  Hill  (N.  Y.),  144;  State 
V.  Bilansky,  3  Minn.  246 ;  State  v. 
Patterson,  2  Ired.  L.  346  ;  Newcomb 
V.  State,  37  Miss.  383;  Sodusky  v. 
McGee,  5  J.  J.  Marsh.  621 ;  Clark  v. 
Reese,  35  Cal.  89. 

"In  R.  V.  Garbett,  1  Den.  236,  it 
was  held  that  a  witness  is  not  com- 
pellable to  answer  a  question  if  the 
court  be  of  opinion  that  the  answer 
might  tend  to  criminate  him.  It  was 
also  held  in  the  same  case  that  the 
court  may  compel  a  witness  to  answer 
any  such  question ;  but  that  if  the  an- 
swer be  subsequently  used  against  the 
witness  in  a  criminal  proceeding,  and  a 
conviction  obtained,  judgment  will  be 
respited,  and  the  conviction  reversed." 


V.  Ronalds,  12  C.  B.  762,  Maule,  J., 
and  Jervis,  C.  J.,  held,  that  it  is  for 
the  witness  to  exercise  his  own  judg- 
ment, and  to  say  whether  the  answer 
will  criminate  him,  and  that  if  he 
thinks  that  it  will,  he  may  refuse  to 
answer.  This  view  was  doubted  by 
Parke,  B.,  in  a  later  case,  Osborne  v. 
London  Dock  Co.  10  Ex.  698,  where 
the  learned  judge  indicated  his  adhe- 
sion to  the  doctrine  of  R.  v.  Garbett. 
The  court  of  queen's  bench,  however, 
has  since  held  that  a  witness  can  only 
claim  the  right  of  refusing  to  answer 
a  question  when  the  court  is  satisfied 
that  there  is  any  real  danger  of  a 
prosecution  if  be  does  answer.  R.  v. 
Boyes,  1  B.  &  S.  311."  Powell's  Evi- 
deuce  (4th  ed.),  109. 

"It  is  settled  that  it  is  no  ground 
for  a  witness  to  refuse  to  go  into  the 
box,  that  the  question  will  criminate 
him,  and  that  he  will  refuse  to  answer 
it.  The  privilege  can  be  claimed  only 
by  the  witness  himself  after  he  has 
been  sworn  and  the  objectionable  ques- 
tion put  to  him.  Boyle  v.  Wiseman, 
10  Ex.  64  7.  And  the  witness  must 
pledge  his  oath  that  he  believes  the 
answer  will  tend  to  criminate  him." 
Powell's  Evidence  (4th  ed.),  109. 

6  Atty.  Gen.  v.  Radloff,  10  Ex.  R.  88. 

6  Fisher  v.  Ronalds,  12  C.  B.  764; 
R.  r.  Boyes,  2  Fost.  &  F.  158;  Foster 


See  infra,  §  539.  In  a  later  case,  Fisher     v.  Pierce,  11  Cush.  437;  Com.  v.  Price, 
612 


CHAP.  VIII.]  WIT]S1ESSES  :    CROSS-EXAMINATION. 


[§  536. 


§  536.  It  has  been  said  that  a  witness  cannot  be  compelled 
to  give  a  link  to  a  chain  of  evidence  by  which  his  con-    Dann-erof 
viction  of  a  criminal  offence  can  be  insured  ;  and  this    ['/oii'^must 
position  is    abundantly  sustained    by  authority.^     But   ^^  '■^'''• 


10   Gray,   472;    Mayo  v.  Mayo,    119 
Mass.  292. 

"It  is  within  the  discretion  of  the 
court,  and  the  usual  practice,  to  ad- 
vise a  witness  that  he  is  not  bound  to 
criminate  himself  where  it  appears 
necessary  to  protect  the  rights  of  the 
witness.  If,  after  having  advised  him 
generally,  it  appears  to  the  presiding 
justice  that  the  witness  intends  to  in- 
sist upon  his  privilege,  but  does  not 
fully  understand  his  rights,  it  is  com- 
petent for  him  to  instruct  the  witness 
fully  as  to  them,  otherwise  the  wit- 
ness might  be  entrapped  into  a  posi- 
tion where  his  privilege  as  a  witness 
would  be  entirely  defeated  through 
his  ignorance,  and  he  would  be  obliged 
fully  to  criminate  himself.  Foster  v. 
Pierce,  II  Cush.  437;  Commonwealth 
V.  Price,  10  Gray,  472.  In  the  case 
at  bar,  therefore,  it  was  competent  for 
the  presiding  justice,  after  the  witness 
had  made  some  answers  tending  to 
criminate  her,  if  he  was  satisfied  that 
she  had  answered  ignorantly,  and  in 
misapprehension  of  her  rights  and 
duty  to  the  court,  to  instruct  her  more 
fully,  and  to  advise  her  that  she  was 
not  obliged  to  answer  further.  And 
it  necessarily  followed  that  such  an- 
swers already  given  should  be  stricken 
out.  The  libellant  would  have  no 
right  to  cross-examine  the  witness  in 
regard  to  them,  and  the  only  way  to 
preserve  the  rights  of  all  parties  was 
to  strike  them  from  the  case,  as  inad- 
vertently and  improperly  admitted." 
Mayo  V.  Mayo,  119  Mass.  292,  Mor- 
ton, J. 

1  Gates  V.  Hardacre,  3  Taunt.  424 
Macullum  v.  Turton,  2  Y.  &  J.  183 
Harrison  v.    Southcote,  1    Atk.  618 

VOL.  1.  33 


King  V.  King,  2  Roberts.  153;  Park- 
hurst  t;.  Lowten,  2  Swanst.  215;  Peo- 
ple iJ.  Mather,  4  Wend.  229;  South- 
ard V.  Rexford,  G  Cow.  254 ;  Bank 
of  Salina  v.  Henry,  2  Denio,  155 ; 
Whart.  Cr.  Law  (7th  ed.),  809;  Lea 
V.  Henderson,  1  Cold.  (Tenn.)  146. 

1  Burr's  Trial,  424.  The  question 
arose  on  Burr's  trial  in  the  following 
shape  :  A  paper  being  produced  to  the 
court  in  cipher,  a  witness  (Mr.  Wil- 
lie) was  asked,  "Did  you  copy  this 
paper?"  He  objected,  that,  if  any 
paper  he  had  written  would  have  any 
effect  on  any  other  person,  it  would 
as  much  affect  himself.  Mr.  Wirt  in- 
sisted that,  as  the  witness  had  sworn, 
in  a  previous  deposition,  that  he  did 
not  understand  the  cipher,  the  mere 
act  of  copying  could  not  implicate  him. 
Willie  was  then  asked,  "  Do  you  un- 
derstand its  contents  ?  "  It  was  ad- 
mitted by  the  witness  that  the  question 
per  se  might  be  innocent,  but  should 
he  answer,  the  prosecution  might  go 
on  gradually,  until  it  at  last  obtained 
matter  enough  to  criminate  him.  The 
counsel  for  the  prosecution  admitted, 
that,  if  they  ha<l  followed  with  a  ques- 
tion as  to  what  were  the  contents  of 
the  letter,  the  objection  might  be 
valid.  But  they  as  yet  had  not.  If 
he  answered  that  he  did  understand 
the  letter,  his  answer  to  the  other 
question  might  amount  to  self-crim- 
ination; but  if  he  did  not  understand 
it,  it  could  not  criminate  him.  The 
(juestion  was  again  changed,  "  Do  you 
know  this  letter  to  be  written  by  Aaron 
Burr,  or  any  one  under  his  author- 
ity ?  "  Marshall,  C.  J.,  said  that  was 
a  proper  question.  The  witness  still 
refused  to  answer,  as  it  might  crim- 

613 


§  537.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


it  at  the  same  time  must  appear,  from  the  nature  of  the  evi- 
dence which  the  witness  is  called  to  give,  that  there  is  reason- 
able ground  to  apprehend  danger  to  the  witness  from  his  being 
compelled  to  answer.  If  the  fact  of  the  witness  being  in  dan- 
ger is  once  made  evident,  great  latitude  should  be  allowed  to 
him  in  judging  of  the  efEect  of  any  particular  question.  The 
danger  to  be  apprehended  must  be  real  and  appreciable,  with 
reference  to  the  ordinary  operation  of  law,  in  the  ordinary 
course  of  things,  and  not  a  danger  of  an  imaginary  character, 
having  reference  to  some  barely  possible  contingency.^  The 
witness  may  claim  the  protection  of  the  court  at  any  stage  of 
the  inquiry,  unless  he  have  already  answered  without  objection 
questions  bringing  virtually  out  the  alleged  criminative  facts.^ 
Danger  of  prosecution  in  a  foreign  court  may  be  considered  as 
giving  such  privilege.^ 

Exposure  §  537.  It  need  scarcely  be  added  that  a  witness  can- 

liability  no  not  excuse  himself  on  the  ground  that  his  answer  would 
norto^po-  expose  him  to  civil  liability.*  That  a  witness's  state- 
meanors^^*   ment  when  examined  can  be  afterwards  made  the  basis 


inate  him.  The  question  was  then 
argued,  when  the  chief  justice  re- 
marked, that  the  proposition  con- 
tended for  on  the  part  of  the  witness, 
that  he  was  to  be  the  sole  judge  of  the 
effect  of  his  answer,  was  too  broad; 
while  that  on  the  other  side,  that  a 
witness  can  never  refuse,  unless  the 
answer  will  pe7-  se  convict  him  of  a 
crime,  was  too  narrow.  He  is  not 
compellable  to  disclose  a  single  link 
in  the  chain  of  proof  against  him. 
If  the  letter  contained  evidence  of  a 
treason,  a  question  determinable  on 
other  testimony  by  his  acquaintance 
with  it  when  written,  he  might  prob- 
ably be  guilty  of  misprision  of  trea- 
son; and  the  court  ought  not  to  com- 
pel his  answer.  If  it  relate  to  the 
misdemeanor  (setting  on  foot  an  un- 
lawful military  expedition  against 
Mexico),  the  court  were  not  apprised 
that  such  knowledge  would  affect  the 
witness.  The  conclusion  was,  that  the 
question  which  respected  the  present 

514 


knowledge  of  the  cipher,  as  it  would 
not  affect  him  in  any  view,  must  be 
answered. 

1  R.  V.  Boyes,  1  B.  &  S.  311 ;  9  Cox 
C.  C.  32  ;  2  F.  &  F.  157 ;  People  v. 
Kelly,  27  N.  Y.  74;  Wroe  v.  State, 
20  Ohio  St.  460,  and  cases  cited  supra, 
§535. 

2  Infra,  §  539. 

8  U.  S.  V.  McRae,  L.  R.  3  Ch. 
App.  79,  by  Ld.  Chelmsford;  though 
see  King  of  Two  Sicilies  v.  Willcox,  1 
Sim.  N.  S.  301. 

4  Lowney  v.  Perham,  20  Me.  235; 
Copp  V.  Upham,  3  N.  H.  159;  Stevens 
V.  Whitcomb,  16  Vt.  121 ;  Ball  v.  Love- 
land,  10  Pick.  9;  Real  i'.  People,  42 
N.  Y.  270;  Baird  v.  Cochran,  4  Serg. 

6  R.  39  7;  Nass  v.  Van  Swearingen, 

7  S.  &  R.  192;  Hays  r.  Richardson,  1 
Gill  &  J.  366;  Taney  f.  Kemp,  4  Har, 
&  Johns.  348 ;  Harper  v.  Burrow,  6 
Ired.  30;  Alexander  t'.  Knox,  7  Ala. 
503;  Judge  t;.  Green,  1  How.  (Miss.) 
146 ;  Planters'  Bk.  v.  George,  6  Martin, 


CHAP.  VIII.]  WITNESSES  :    CROSS-EXAMINATION.  [§  538. 

of  a  suit  against  him,  we  have  already  seen.i  Papers  and  docu- 
ments a  witness,  in  like  manner,  is  compellable  to  produce, 
however  unfavorable  the  production  may  be  to  his  pecuniary 
interests ;  ^  though  in  England  an  exception  is  made  in  favor  of 
titles  to  estates,  on  account  of  the  mischief  which,  in  the  English 
system,  might  be  caused  if  the  production  of  such  papers  were 
coerced.^  Formerly,  also,  parties  were  excepted  from  this  rule ; 
but  now,  by  statute  in  most  states,  even  parties  may  be  com- 
pelled to  produce  papers  which  are  not  criminatory.'^  What 
has  been  said  as  to  civil  suits  has  been  extended,  on  ground  of 
public  policy,  to  prosecutions  for  such  police  offences  as  selling 
spirituous  liquors  without  license.  In  such  cases,  the  vendee  of 
the  illicit  drink  will  be  compelled  to  answer,  though  by  so  doing 
he  expose  himself  to  a  prosecution  as  accessory  to  the  sale.^ 
§  538.  The  witness  is  not  the  sole  judge  of  his  liability.  The 
liability  must  appear  reasonable  to  the  court,  or  the  court  de- 
witness  will  be  compelled  to  answer.^  Thus  a  witness  as'"" privi- 
will  be  compelled  to  answer  as  to  conditions  which  '«g«- 
he  shares  with  many  others  (e.  g.  whether  he  was  in  the  neigh- 
borhood of  a  homicide  on  a  particular  day,  when  such  neighbor- 
hood includes  a  city),  though  not  as  to  conditions  wliich  would 
bring  the  crime  in  suspicious  nearness  to  himself."  But  in  order 
to  claim  the  protection  of  the  court  the  witness  is  not  required  to 
disclose  all  the  facts,  as  this  would  defeat  the  object  for  which 

670;  Conoveru.  Bell,  6T.  B.  Mon.  157;  nandez,  ex  parte,   10   C.  B.N.  S.  3, 

Com.  y.  Thurston,  7  J.  J,  Marsh.  63;  39;  Com.  v.  Brainerd,  Thacher  C.  C. 

Zolliokoffer  u.  Turney,  6  Yerg.  297.  146;  Grannis  v.  Branden,  5  Day,  260; 

•^  Supra,  §  488.  Jackson   v.    Humphrey,    1  Johns.  R. 

2  Doe  V.  Date,  3  Q.  B.  609;  Doe  v.  498;  People  v.  Mather,  4  Wend.  229; 
Egremont,  2  M.  &  Rob.  386;  Davies  Southard  v.  Rexford,  G  Cow.  254;  Real 
V.  Waters,  9  M.  &  W.  608.  Infra,  §§  v.  People,  42  N.  Y.  270  ;  Galbreath  v. 
742-56.  Eichelberger,  3  Yeates,  515;  Vaughan 

3  Doe  V.  Date,  3  Q.  B.  369;  Picker-  v.  Perrine,  2  Pcnn.  144;  Winder  u. 
ing  V.  Noyes,  1  B.  &  C.  263.  Diffenderffer,  2  Bland,  166  ;  Ward  r. 

<  See  supra,  §  489  ;  infra,  §§  745,  State',  2  Mo.  98;  Territory  i'.  Nugent, 

751.  1    Mart.  114;   Archbold's    C.  P.  (ed. 

6  Stater.  Rand,  51  N.  H.  361;  Com.  of   1871),  277;   Richman  v.  State,  2 

V.    Willard,    22    Pick.    476;    Com.   v.  Greene  (Iowa),  532;  Kirshner  v.  State, 

Downing,    4    Gray,   29  ;    though   see  9  Wise.   140  ;  Floyd  v.  State,  7  Tex. 

Doran's  case,  2  Parsons  R.  467.  215;  and  see  cases  cited  supra  to  §  535. 

«  Osborn  r.  Dock  Co.  10  E.xch.  698;         ^  u.  „.  Boyes,  1  B.  cSc  S.  311  ;  9  Cox 

Sidebotham  v.   Adkins,   27  L.  J.  Ch.  C.  C.  22;  Wroe  v.  State,   20  Oh.  St. 

152;  R.  V.  Boyes,  1  B.&  S.311;  Fer-  460.    Supra,  §  536. 

515 


§  540.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


Waiver 
of  part 
waives  all. 


he  claims  protection.^  It  is  not,  indeed,  enough  for  the  witness 
to  say  that  the  answer  will  criminate  him.^  It  must  appear  to 
the  court,  from  all  the  circumstances,  that  there  is  a  real  dan- 
ger ;  though  this  the  judge  is  allowed  to  gather  from  the  whole 
case,  as  well  as  from  his  general  perceptions  of  the  relations  of 
the  witness.^ 

§  539.  In  this  country  the  tendency  of  authority  is  that  a  wit- 
ness who  voluntarily  opens  an  account  of  a  transaction 
exposing  him  to  a  criminal  prosecution,  is  obliged  to 
complete  the  narrative.  He  cannot,  for  instance,  state 
a  fact,  and  afterwards  refuse  to  give  the  details."*  Even  a  party 
who  becomes  a  witness  cannot,  after  waiving  his  rights,  decline 
a  cross-examination,  on  the  ground  that  it  exposes  a  criminality 
which  he  has  already  discovered.^  In  England,  by  a  majority 
of  the  judges,  it  is  now  held  that  a  witness  may  at  any  time 
avail  himself  of  the  protection  of  the  court,  and  refuse  further 
answers.^ 

§  540.  It  is  necessary,  however,  that  the  offence  should  be  one 
Pardon        ^q  ^liich  some    penal    consequences    are   attached.     If 

and indera-  ^     ^  ^ 

nity  do        there  be  a  pardon  issued  by  the  proper  authorities,  the 

away  with  .  .iTi  ni  7  i  1  i 

protection,    witucss  Will  be  Compelled  to  answer  ; '  and  so  when  the 


1  R.  V.  Garbett,  2  C.  &  K.  495; 
Fisher  v.  Ronalds,  12  C.  B.  762;  Mex- 
ican &  S.  Amer.  Co.,  ex  parte,  4  De 
Gex  &  J.  220;  27  Beav.  474. 

2  R.  V.  Boyes,  9  Cox,  32  ;  1  B.  &  S. 
311;  Osborn  v.  Dock  Co.  10  Ex.  R. 
701;  Fernandez,  ex  parte,  10  C.  B. 
N.  S.  3.  See,  however,  contra,  War- 
ner V.  Lucas,  10  Ohio,  336;  Poole  v. 
Perritt,  1  Speers,  128. 

^  See  Vaillant  v.  Dodemead,  2  Atk. 
524  ;  R.  V.  Boyes,  1  B.  &  S.  311. 

*  East  V.  Chapman,  1  M.  &  Mai. 
46  ;  4  C.  &  P.  570;  Low  v.  Mitchell, 
18  Me.  372;  State  v.  K.,  4  N.  H. 
562  ;  State  v.  Foster,  23  N.  H.  348  ; 
Chamberlain  v.  Wilson,  12  Vt.  491  ; 
Foster  v.  Pierce,  11  Cush.  437  ;  Com. 
r.  Price,  10  Gray,  472;  People  v.  Car- 
roll, 3  Park.  C.  R.  73;  People  v. 
Lohman,  2  Barb.  216 ;  Alderman  v. 
People,  4  Mich.  414. 
516 


6  State  V.  Ober,  52  N.  H.  459 ;  Com. 
V.  Lannan,  13  Allen,  563;  Com.  v. 
Mullen,  97  Mass.  545  ;  Com.  v.  Mqr- 
gan,  107  Mass.  199;  McGarry  v.  Peo- 
ple, 2  Lansing,  227  ;  Burdick  v.  Peo- 
ple, 58  Barb.  51;  Fralich  v.  People, 
65  Barb  48;  Connors  v.  People,  50 
N.  Y.  240;  Barber  v.  State,  13  Fla. 
675.     Supra,  §483. 

6  R.  V.  Garbett,  2  C.  &  K.  274  ;  S. 
C.  1  Den.  C.  C.  235;  2  Cox  C.  C. 
448;  overruling  Dixon  v.  Vale,  1  C.  & 
P.  278;  East  v.  Chapman,  2  C.  &  P. 
573;  Ewing  v.  Osbaldiston,  6  Sim.  808. 
As  according  with  R.  v.  Garbett,  may 
be  cited  Cozzens,  ex  parte,  Buck.  531. 
See  supra,  535. 

T  R.  V.  Boyes,  2  F.  &  F.  157;  S.  C. 
9  Cox  C.  C.  32;  R.  v.  Maloney,  9  Cox 
C.  C.  26  ;  R.  V.  Charlesworth,  2  F.  & 
F.  326. 


CHAP.  VIII.]  WITNESSES :    CROSS-EXAMINATION.  [§  541. 

statute  of  limitations  has  interposed  a  bar.^  Statutes  of  indem- 
nity and  special  amnesty  have  the  same  effect,  when  they  do 
not  conflict  with  local  constitutions.^  In  New  York,  for  in- 
stance, where  the  Constitution  simply  secures  the  witness  from 
being  a  "  witness  against  himself,"  indemnity  statutes  have 
been  held  to  pi-eclude  the  witness  from  setting  up  privilege ;  ^ 
and  so,  also,  has  it  been  ruled  under  a  similar  provision  in  the 
Constitution  of  the  United  States.*  In  Massachusetts,  however, 
where  the  Constitution  provides  that  no  person  "  shall  be  com- 
pelled to  accuse  or  furnish  evidence  against"  himself,  a  statute 
which  is  not  coextensive  with  the  constitutional  provision  does 
not  divest  the  witness  of  his  common  law  rights.^ 

§  541.  Every  man  is  entitled  to  such  a  measure  of  oblivion  for 
the  past  as  will  protect  him  from  having  it  ransacked   p^r  the 
by  mere  volunteers ;  and  independent  of  this  general   J||sJ|.g^^i,.°^ 
sanction,  if  witnesses  were  to  be  compelled  to  answer   '"s  ^^'t- 

.  ...  .  ness,  an- 

nshmg  questions  as  to  any  scandals  in  their  past  lives,   swers  will 
the  witness  box  would  become  itself  a  scandal  which  no    peiied  to 
civilized  community  would  tolerate.      No  witness,  no   imputing 
matter  how  respectable,  could  be  sworn,  without  being   disgrace, 
required,  if  it  should  please  the  opposing  party,  to  have  even  the 
most  remote  passages  of  his  past  life  explored,  and  without  being 
himself  compelled  to  narrate  any  events  in  that  life  which  were 
discreditable ;    no   matter  for  how  long  a  time    such    discredit 
had  been  atoned  by  penitence,  by  reformation,  and  by  correction 
of  the  wrong.     Such  inquisitions,  however,  the  courts  have  re- 
fused to  permit ;  and  it  has  hence  been  held,  not  only,  as  we 
will  see,  that  parties  are  bound  by  collateral  answers  they  wring 
from  a  witness  as  to  his  history  ;  ^  but  that  the  witness  will  not 

1  Roberts  v.  Allott,  1  M.  &  M.  192;  11  Cox,  5G6  ;  Fernandez,  ex  parte,  10 
Parkhurst  v.  Lowten,  1  Mer.  400;  C.  B.  N.  S.  3;  R.  i'.  Iluhne,  L.  R.  5 
Williams  V.  Farrington,  2  Cox  Ch.  R.  Q.  B.  277;  Wilkins  c.  .Alalone,  14 
202;  Davis  v.  Reid,  5  Sim.  443  ;  Peo-  Ind.  153;  Douglass  v.  Wood,  1  Swan, 
pie  V.  Mather,  4  Wend.  229;  Close  u.  393;  State  v.  Quarles,  13  Ark.  307. 
Olney,  1  Denio,  319;  Moloney  v.  See  State  v.  Henderson,  4  7  Ind.  127; 
Dows,  2  Hilt.  (N.  y.)  247  ;   U.  S.  v.  Clark  v.  Reese,  35  Cal.  89. 

Smith,  4  Day,  121;  Weldon  v.  Burch,  »  People  v.  Kelly,  24  N.  Y.  74. 

12  111.    374;   Floyd  v.   State,   7  Tex.  *  U.  S.  v.  Brown,  1  Sawyer,  531. 

215.  6  Emery's  ease,  107  Mass.  172. 

2  See  R.  V.  Strachan,  7  Cox,   G5  ;  "  Infra,  §  54  7. 
R.  V.  Skeen,  8  Cox,  143;  R.  v.  Buttle, 

517 


§  542.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


be  compelled  to  answer  such  questions  when  they  are  only  intro- 
duced in  order  to  discredit  him,  and  are  not  essential  to  the 
merits  of  the  case  of  the  party  asking  them.^ 

§  542.  On  the  other  hand,  a  witness  cannot  ward  off  answering 
a  question  material  to  the  issue  on  the  ground  that  it 
imputes  disgrace  to  himself,  such  disgrace  not  amount- 
ing to  crimination.^  Thus  in  a  prosecution  for  bastardy, 
a  witness,  introduced  by  the  defendant  to  prove  that  the 
plaintiff  had  sexual  intei'course  with  another  man  about 


Witness 
may  be 

compelled 
to  answer 
questions 
imputing 
disgrace 


1  R.  V.  Hodgson,  R.  &  R.  211 ;  Dodd 
V.  Norris,  4  Camp.  519  ;  Friend's  case, 
4  St.  Tr.  225  ;  Lewis's  case,  4  Esp. 
225  ;  McBride  v.  McBride,  4  Esp.  242; 
U.  S.  V:  Dickinson,  2  McLean,  325  ; 
State  V.  Staples,  47  N.  H.  113;  Smith 
V.  Castles,  1  Gray,  108;  People  w.  Her- 
rick,  13  Johns.  R.  82  ;  Lohman  v. 
People,  1  Comst.  379;  S.  C.  2  Barb. 
217;  Lewis,  in  re,  39  How.  (N.  Y.) 
Pr.  155 ;  Resp.  v.  Gibbs,  3  Yeates,  429 ; 
Galbreath  v.  Eichelberger,  3  Yeates, 
515;  State  v.  Bailey,  1  Penn.  (N.  J.) 
415;  Vaughn  v.  Perrine,  2  Penn.  (N. 
J.)  534;  Houser  v.  Com.  51  Penn.  St. 
332;  Howel  v.  Com.  5  Grat.  664; 
Forney  v.  Ferrell,  4  West  Va.  729  ; 
Leach  v.  People,  53  111.  311  ;  Toledo 
R.  R.  V.  Williams,  77  111.  354  :  State 
V.  Garrett,  1  Busbee,  357  ;  Campbell 
i;.  State.  23  Ala.  44;  Marx  v.  Bell,  48 
Ala.  497;  Harper  v.  R.  R.  47  Mo. 
567. 

In  Real  v.  People,  42  N.  Y.  270,  it 
was  said  by  Grover,  J. :  "  My  conclu- 
sion is,  that  a  witness  upon  cross-ex- 
amination may  be  asked  whether  he 
has  been  in  jail,  the  penitentiary,  or 
state  prison,  or  any  other  place  that 
would  tend  to  impair  his  credibility, 
and  howjnuch  of  his  life  he  has  passed 
in  such  places.  "WTien  the  inquiry  is 
confined  as  to  whether  he  has  been 
convicted,  and  of  what,  a  different  rule 
may  perhaps  apply.  This  involves 
questions   as  to  the   jurisdiction    and 

618 


proceedings  of  a  court  of  which  the 
witness  may  not  be  competent  to 
speak.  This  was  the  point  involved 
in  Griswold  v.  Newcomb,  24  N.  Y.  298, 
and  the  only  point  in  that  case.  Here 
the  inquiry  was  simply  whether  and 
how  long  the  witness  had  been  in  the 
penitentiary.     This  the  witness  knew 

and  could  not  be  mistaken  about 

The  extent  of  the  cross-examination 
of  this  character  is  somewhat  in  the 
discretion  of  the  court,  and  must  nec- 
essarily be  so  to  prevent  abuse."  So, 
also,  Wilbur  v.  Flood,  16  Mich.  40; 
State  V.  March,  1  Jones  L.  (N.  C.) 
526;  State  v.  Garrett,  Busbee  L.  (N. 
C.)  35  7;  Com.  v.  Bonner,  97  Mass. 
587  ;  People  v.  Manning,  48  Cal.  335, 
sustaining  such  questions.  Ordina- 
rily convictions  must  be  proved  by 
record.  Clement  v.  Brooks,  13  N. 
H.  92  ;  Com.  v.  Quin,  5  Gray,  478  ; 
Newcomb  v.  Griswold,  24  N.  Y.  298  ; 
Stout  V.  Rassell,  2  Yeates,  334;  People 
V.  Reinhardt,  39  Cal.  449.  Supra,  §§ 
63,  64;  infra,  §  991. 

See  Am.  Law  Rev.  Jan.  1877,  396. 

2  See  cases  cited  in  prior  section  ; 
Whart.  Cr.  L.  7th  ed.  §  807;  Com.  v. 
Curtis,  97  Mass.  574;  Burnett  v.  Pha- 
lon,  11  Abb.  (N.  Y.)  Pr.  157  ;  Hunt  v. 
McCalla,  20  Iowa,  20;  Ragland  v. 
Wickware,  4  J.  J.  Marsh.  530;  Rowe, 
ex  parte,  7  Cal.  184  ;  Clark  i'.  Reese, 
35  Cal.  89;  Ward  v.  State,  2  Mo.  98 ; 
Clementine  v.  State,  14  Mo.  112. 


CHAP.  VIII.] 


WITNESSES  :•   CROSS-EXAMINATION. 


[§  542. 


the  time  of  the  begetting  of  the  child,  has  been  com- 
pelled to  answer  whether  he  had  such  intercourse  with 
her,  she  having  denied  that  she  had  such  intercourse 
with  any  one  but  the  defendant.^  So  in  an  action  for 
away  the  plaintiff's  wife,  where  the  answer  was  that 
was  driven  from  home  by  her  husband's  immorality,  it 
that  the  plaintiff,  when  examined  as  a  witness,  could 
pelled  to  answer  as  to  such  immorality.^ 


when  such 
questions 
aie  mate- 
rial to  the 
issue. 

enticing 
the  wife 
was  held 
be  com- 


1  Hill  y.  State,  4  Ind.  112. 

2  Taylor  v.  Jennings,  7  Rob.  (N.  Y.) 
581. 

In  England  the  same  distinction  is 
maintained.  When  a  question  is  not 
material  to  the  issue,  and  its  object  is 
merely  to  degrade  the  character  of  the 
witness,  he  is  not  compellable  to  an- 
swer it.  Thus,  on  a  charge  of  rape, 
or  indecent  assault,  the  prosecutrix 
cannot  be  compelled  to  say  whether 
she  has  had  connection  with  other 
men,  or  particular  persons ;  nor  can 
evidence  of  such  connection  be  re- 
ceived, for  if  she  has  once  denied  it, 
her  answer  is  final.  R.  v.  Holmes,  41 
L.  J.  M.  C.  12  ;  20  W.  R.  123;  L.  R. 
1  C.  C.  R.  334.  The  Indian  law  is 
different.  See  Ind.  Ev.  Act,  s.  155. 
So,  in  an  action  of  seduction,  the 
woman  is  not  compelled  to  say  whether 
she  has  had  connection  with  other 
men  previous  to  the  alleged  seduction ; 
but  the  defendant  may  prove  such  pre- 
vious connection  in  reduction  of  dam- 
ages. Dodd  V.  Norris,  3  Camp.  519. 
Powell's  Evidence,  4th  ed.  117. 

"  In  equity  this  rule  is  carried  even 
further  than  at  common  law.  A  wit- 
ness will  not  be  compelled  to  answer 
any  question  which  would  subject  him 
to  a  criminal  charge,  or  to  any  pains 
or  penalties,  or  to  ecclesiastical  cen- 
sure, or  to  a  forfeiture  of  interest ;  and 
the  protection  is  said  to  be  extended 
even  to  cases  where  the  answer  would 
prove  the  witness  guilty  of  great  moral 
turpitude,  subjecting  him  to  penal  con- 


sequences." Wigram  on  Discovery,  81 ; 
Mitford  on  Pleading,  194.  "But when 
the  reason  for  the  privilege  ceases,  the 
privilege  will  cease  also.  Therefore, 
if  a  penalty  or  forfeiture  would  enure 
for  the  benefit  of  a  plaintifi",  and  he 
waives  the  same,  or  when  the  time  for 
suing  for  a  penalty  has  expired,  a 
witness  is  compelled  to  answer,  as  also 
he  is  if  by  contract  he  is  bound  to 
answer,  notwithstanding  the  conse- 
quences." Wigram  on  Discovery,  83; 
Powell's  Evidence,  4th  ed.  117. 
In  Iowa  we  have  the  following  :  — 
"  On  the  cross-examination  of  the 
plaintiff  as  a  witness,  she  was  asked 
by  the  appellant's  counsel  the  follow- 
ing question  :  '  Did  you,  before  this 
time  (referring  to  the  time  of  the  al- 
leged seduction),  have  intercourse  with 
other  men  ?  '  The  witness  refused  to 
answer  on  the  ground  of  privilege.  Ap- 
pellant's counsel  requested  the  court 
to  compel  her  to  answer  the  (juestion, 
but  the  court  sustained  the  witness  in 
her  refusal. 

"  Our  statute  provides  '  that  no  wit- 
ness is  excused  from  answering  a  ques- 
tion upon  the  mere  ground  that  he 
would  thereby  become  subjected  to  a 
civil  liability.  But  when  the  matter 
sought  to  be  elicited  would  tend  to 
render  him  criminally  liable,  or  expose 
him  to  public  ignominy,  he  is  not  com- 
pelled to  answer,'  &c.  Revision,  §§ 
3988,  3989.  This  term  •  ignominy,' 
means  shame,  disgrace,  dishonor.  See 
Webster's    Unabridged  Diet.  '  Public 

519 


§  543.] 


THE   LAW    OF    EVIDENCE. 


[book  ir. 


§  543.  As  we  have  already  seen,  a  witness  cannot  at  common 
"Witness  ^^^  ^®  examined,  for  the  purpose  of  discrediting  or  ex- 
chiding  him,  as  to  his  religious  belief.^  This  rule,  it  is 
held  in  Massachusetts,  is  unaffected  by  the  statute  re- 
moving disability  on  account  of  religious  disbelief,  but 
permitting  evidence  of  such  disbelief  in  order  to  affect 


may  be 
cross-ex- 
amined as 
to  liis  re- 
ligious be- 
lief. 


ignominy,'  therefore,  means  public  dis- 
grace, public  dishonor.  The  matter 
sought  to  be  elicited  by  the  question 
would,  most  clearly,  tend  to  bring  the 
witness  into  public  disgrace;  for,  by 
the  question  the  appellant  sought  to 
show  that,  prior  to  her  seduction,  the 
witness  had  illicit  intercourse  with 
other  men  than  the  defendant.  It 
was  the  right  of  the  witness,  there- 
fore, to  refuse  to  answer,  and  there 
was  no  error  in  the  ruling  of  the  court 
on  this  point.  The  case  of  the  State 
V.  Sutherland,  30  Iowa,  570,  cited  by 
appellant,  has  no  application  to  this 
question.  That  was  a  criminal  pros- 
ecution for  seduction,  in  which  the 
previously  chaste  character  of  the 
prosecutrix  is  an  essential  ingredient 
of  the  offence,  and  the  witness  in  that 
case  did  not  refuse  to  answer  the  in- 
terrogatory propounded  to  her  in  re- 
spect to  her  previous  conduct  with 
other  men.  In  that  case  the  court,  on 
objection  by  the  state,  refused  to  al- 
low the  question  to  be  put  to  the  wit- 
ness." Miller,  Ch.  J.,  Brown  v.  Kings- 
ley,  38  Iowa,  221. 

In  a  judicious  article  in  the  London 
Law  Journal,  reprinted  in  the  Albany 
Law  Journal  for  1876,  p.  281,  we 
have  the  following  observations:  "  Ex- 
perience, apart  from  fairness,  teaches 
that  legal  rights  are  double-edged 
weapons,  which  a  man  should  use  care- 
fully. So  it  is  with  cross-examina- 
tion to  credit.  Counsel  may  find  in 
his  brief  material  for  the  injury  of  a 
witness;  but  the  business  of  counsel  is 


to  succeed  in  the  cause,  and  an  out- 
rage on  the  feelings  of  a  witness  may 
be  resented  by  a  jury.  Arbitrators 
are  notoriously  averse  to  attacks  of 
this  class  on  the  credit  of  witnesses, 
and  it  is  hardly  ever  good  policy  to 
attempt  anything  of  the  kind  in  the 
conduct  of  references.  Counsel  have 
also  to  reckon  with  the  judge  ;  and  the 
strength  of  strong  judges  is  not  wisely 
provoked  to  adverse  action  where  jur- 
ors and  audience  would  instinctively 
nod  assent  to  a  crushing  summing-up. 
There  is  also  the  counsel's  own  sense 
of  right.  Nothing  can  be  more  mon- 
strous than  for  a  counsel  to  ask  a  ques- 
tion calculated  to  torture  not  only  the 
witness,  but  a  host  of  innocent  per- 
sons nearly  connected  with  the  wit- 
ness, merely  because  the  question  is 
in  the  brief,  and  the  client  wishes  it  to 
be  asked.  Counsel  is  bound  in  honor, 
and  out  of  respect  to  himself  and  his 
profession,  to  consider  whether  the 
question  ought  to  be  asked,  not  whether 
his  client  would  like  it  put.  Counsel 
is  not  the  mouth-piece  of  spite  or  re- 
venge. He  is  not  to  adopt  a  line  of 
conduct  which,  if  universally  carried 
out,  would  drive  truth  out  of  court  by 
intimidating  witnesses.  Among  other 
considerations,  he  should  weigh  with 
himself  whether  the  expected  answer 
ought  to  render  the  witness  unworthy 
of  belief  on  his  oath;  whether  the  act 
to  be  revealed  is  of  recent  date,  so  as 
to  make  it  improbable  that  the  wit- 
ness has  repented  his  misconduct,  and 
striven  to  amend  his  wavs.     In  some 


520 


See  supra,  §  396. 


CHAP.  VIII.] 


WITNESSES  :    CROSS-EXAMINATION. 


[§  544. 


credibility.^  In  New  York  a  different  conclusion  is  reached,  un- 
der the  Constitution  of  1848,  which  permits  atheists  to  testify .^ 
That  such  questions  cannot  be  put  to  affect  competency,  we  have 
already  seen.^  The  same  reasoning,  it  should  be  added,  does  not 
necessarily  apply  when  the  question  is  as  to  credibility. 

§  544.  Where  the  question  goes  to  the  motives  of  the  witness 
in   testifying,  he   will  be  compelled,   on   reasoning  al-   ^^^^  j.^,  ^^ 
ready  stated,  to  answer.*     Thus  a  witness  for  the  pros-   *?  i"''*" 

,  .  ,  ■"■  tions  as  to 

ecution,  on  a  trial  for  riot,  has  been  compelled  to  say   motive  or 

•  vcnicitv  or 

whether  he  did  not  belong  to  a  secret  society  organ-  to  the  res 
ized  to  suppress  a  sect  to  which  the  defendant  be-  •^^*"^' 
longed.^  So  answers  may  be  compelled  to  any  questions  as  to 
the  witness's  corrupt  or  interested  leanings  in  the  case.*^  So  as 
to  matters  connected  with  the  res  gestae  a  witness  may  be  com- 
pelled to  answer  questions,  no  matter  how  much  charged  with 
disgrace.'^     And  while  courts  have  refused  to  permit  a  witness  to 


cases,  also,  counsel  may,  perhaps,  con- 
sider whether  the  good  to  accrue  to  his 
client  from  the  answer  is  not  so  small 
as  to  compare  with  the  enormous  mis- 
chief to  be  done  to  the  witness,  and  to 
other  persons,  as  to  justify  him  in  de- 
clining to  put  the  question.  We  admit 
that  no  definite  set  of  rules  can  be  pre- 
scribed for  counsel.  lie  must  judge  for 
himself;  and  he  will  have  the  conso- 
lation of  knowing  that  he  is  not  very 
likely  to  go  wrong  if  he  acts  on  his 
own  opinion,  instead  of  inclining  his 
ear  to  the  remorseless  passion  or  the 
unscrupulous  greed  of  the  party  for 
whom  he  is  retained." 

"  Everybody  recollects  the  famous 
question  on  the  trial  of  Orton,  wliieh 
has  generally  been  held  unjustifiable. 


(2.)  to  shake  liis  credit  by  injuring  his 
character.  He  may  be  compelled  to 
answer  any  such  question,  however  ir- 
relevant it  may  be  to  the  facts  in  issue, 
and  however  disgraceful  the  answer 
may  be  to  himself,  except  in  the  case 
provided  for  in  article  120,  namely, 
when  the  answer  might  ex])Ose  him  to 
a  criminal  charge  or  penalty." 

^  Com.  V.  Burke,  IG  Gray,  33. 

'■2  Stanbro  v.  Hopkins,  28  Barb.  2G5. 

8  Supra,  §  396. 

*  Supra,  §  408;  Kelsey  v.  Ins.  Co. 
35  Conn.  225;  People  r.  Morrigan,  25 
Mich.  5;  McFarlin  v.  State,  41  Tex. 
23;  and  see  intra,  §  561. 

6  People  V.  Christie,  2  Parker  C.  R. 
579. 

6  State  V.  Dee,  14  Minn.  35.     This 


mainly  on  the  ground  that  the  rela-     has  been  pushed  to  a  great  extent  by 


tions  between  the  sexes  have  no  direct 
bearing  on  the  probability  of  the  wit- 
ness telling  the  truth." 

Mr.  Fitzjames  Stephen,  in  his  Digest 
of  the  Law  of  Evidence,  expounds  the 
law  as  follows  :  "  When  a  Avitness  is 
cross-examined  he  may  be  asked  any 
questions  which  tend  (1.)  to  test  his 
accuracy,  veracity,  or  credibility;   or 


Best,  J.,  in  Cundcll  v.  Pratt,  M.  &  M. 
108;  and  by  Lord  Tentenlen,  in  Rob- 
erts c.  AUatt,  M.  &M.  192. 

T  Cundell  V.  Pratt,  1  M.  &  i\I.  108; 
U.  S.  V.  White,  5  Cranch  C.  C.  38; 
People  V.  Mather,  4  Wend.  2.^)0-4; 
Bernev  v.  Mittnacht,  2  Sweeny,  .')82; 
Hill  I'.  State,  4  Ind.  112;  Foster  v. 
People,  18  Mich.  2(;6. 

521 


§  546.] 


THE  LAW   OF  EVIDENCE. 


[book  n. 


Witness 
may  be 
cross-ex- 
amined as 
to  bias. 


be  examined  as  to  past  irrelevant  misconduct,  yet  questions  have 
been  permitted  tending  to  search  his  conscience  as  to  such  recent 
infamy  as  leaves  his  testimony  entitled  to  little  respect.^  The 
same  rule  applies  to  questions  probing  veracity .2  If  a  criminal 
conviction  can  Jje  put  in  evidence  to  discredit  a  witness,^  he  may 
be  asked  as  to  the  collateral  incidents  of  such  conviction. 

§  545.  Apart  from  such  questions  as  impute  disgrace  or  crime, 
a  witness  may  be  compelled  to  answer  all  questions 
concerning  his  relationship  to  either  of  the  parties,  his 
interest  in  the  suit,  his  capacity  of  discernment  and  ex- 
pression, his  motives,  and  his  prejudices.  He  may  be 
thus  required  to  explain  whatever  would  show  bias  on  his  part 
or  incapacity  to  testify  accurately.* 

§  546.  However  sternly  it  may  be  proclaimed  by  statute  or 
judgment  that  no  inference  is  to  be  drawn  against  a 

rnfcrcncG  • 

against  witucss  from  his  refusal  to  answer  an  inquiry  as  to  mis- 
may*be  conduct,  the  inference  is  one  which  is  technically  log- 
drawn  j^grj^i^  ^^^  which  in  ordinary  cases  it  is  both  natural  and 
fusai  to  an-  permissible  for  juries  to  draw.^  It  is  true  that  a  pure 
man  of  great  sensitiveness  may  indignantly  refuse  to 
tolerate  such  a  question  ;  but  if  the  witness  be  not  known  to  be 
a  pure  man  of  great  sensitiveness,  his  refusal  to  answer  will  be 


1  Cundell  v.  Pratt,  M.  &  M.  108; 
Roberts  v.  Allatt,  M.  &  M.  192;  Real 
V.  People,  42  N.  Y.  270. 

2  Ordway  v.  Haynes,  50  N.  H.  159; 
Boles  V.  State,  46  Ala.  204. 

8  Supra,  §  542;  infra,  §  567. 

*  See  §  408  ;  Drew  v.  Wood,  26  N. 
H.   363  ;   Hutchinson   v.  Wheeler,   35 
Vt.  330  ;  Mclntyre  v.  Park,  11  Gray, 
102  ;  Day  v.  Stickney,  14  Allen,  255; 
Atwood  V.  Welton,  7  Conn.  66  ;  Me- 
chanics' Bank  v.  Smith,  19  Johns.  R. 
115  ;  Bennett  v.  Burch,  1  Denio,  141; 
Newton  v.  Harris,  6  N.  Y.  345  ;  Peo- 
ple V.   Christie,   2   Park.  C.  R.    579 
Breinig  v.  Meitzler,  23  Penn.  St.  156 
Bricker   v.    Lightner,    40    Penn.    St 
199;    Blessing   v.    Hape,   8    Md.  31 
Phillips  V.  Elwell,   14    Oh.    St.  240 
Huckleberry  v.  Riddle,   29  Ind.  454 
522 


Ray  V.  Bell,  24  111.  444  ;  First  Nat. 
Bk.  V.  Haight,  55  III.  191  ;  Crippen  v. 
People,  8  Mich.  117  ;  Dann  v.  Cud- 
ney,  13  Mich.  239  ;  Kellogg  v.  Nel- 
son, 5  Wise.  125  ;  Suit  v.  Bonnell,  33 
Wise.  180  ;  State  v.  Oscar,  7  Jones 
L.  305  ;  Stoundenmeier  v.  Williamson, 
29  Ala.  558  ;  Pool  v.  Pool,  33  Ala. 
145  ;  Winston  v.  Cox,  38  Ala.  268  ; 
Bullard  v.  Lambert,  40  Ala.  204 ; 
State  V.  Adams,  14  La.  An.  620;  Dick 
V.  State,  30  Miss.  631  ;  Newcomb  v. 
State,  37  Miss.  383  ;  Coates  v.  Hop- 
kins, 34  Mo.  135;  Harper  v.  Lamping, 
33  Cal.  641  ;  Bixby  v.  State,  15  Ark. 
395;  Thornburgh  v.  Hand,  7  Cal.  554. 
6  See  Taylor's  Ev.  §  1321,  citing 
Bayley,  J.,  in  R.  v.  Watson,  2  Stark. 
R.  153.  See  Andrewes  v.  Fry,  104 
Mass.  234. 


CHAP.  VIII.] 


WITNESSES:   HOW  IMPEACHED. 


[§  549. 


On  cross- 
examina- 
tion wit- 
ness's an- 
swers as  to 
previous 


naturally  presumed  to  arise  from  the  fact  that  if  he  answered 
the  answer  would  be  discreditable.^ 

§  547.  As  will  hereafter  be  seen,  a  witness's  answers 
on  cross-examination  to  collateral  questions  cannot  be 
disputed.^  A  witness's  answers  to  questions  relating  to 
his  previous  conduct  are  regarded  as  so  far  collateral 
that  thev  cannot  be  contradicted  bv  the  partv  cross-  ciiaracter 
examining,  unless  it  be  as  to  matter  which  the  law  per-  sive,  andso 
mits  to  be  shown  for  the  purpose  of  impairing  credi-  ters  coiiat- 
bility.3  ^'•^•• 

§  548.  Even  a  party  when  cross-examined  as  a  witness,  as  to 
previous  misconduct  similar  to  that  under  trial,  concludes  the 
party  cross-examining  him  by  his  answers,  unless  such  miscon- 
duct would  be  itself  relevant  as  part  of  the  case  of  the  cross- 
examining  party .^  To  let  in  such  evidence  would  be  to  abro- 
gate the  fundamental  principle  that  a  party  is  only  to  be  tried 
on  a  particular  issue,  and  that  on  such  issue  evidence  of  inde- 
pendent misconduct  is  inadmissible.^  But  this  principle  applies 
only  to  the  witness's  ansivers.  Whether  the  questions  can  be 
put  is  elsewhere  discussed.^ 

XI.  IMPEACHING  WITNESS. 
§  549.  By  a  technical  rule  of  the  English  common  law,  while 
a  party  may  contradict  his  own  witnesses,  though  this   p^^^^,  ^^^^ 
may  discredit  them,  he  is  not  ordinarily  permitted  to    not  dis- 

•^  111         credit  his 

impeach  them,  even  though  called  afterwards  by  the   own  wit- 
opposite  side,  either  by  general  evidence,  or  by  proof  of 
prior  contradictory  statements.'^     By  calling  the  witness,  so  it  is 


1  See  infra,  §  1265. 

*  See  infra,  §  559. 

8  Goddard  v.  Parr,  24  L.  J.  Ch. 
784;  Taylor's  Ev.  §  1295  ;  Odiorne 
V.  Winkley,  2  Gall.  51  ;  Seavy  v. 
Dearborn,  19  N.  H.  351  ;  Stevens  v. 
Beach,  12  Vt.  585  ;  Bivens  v.  Brown, 
87  Ala.  422;  Cornelius  v.  Com.  15  B. 
Mon.  539. 

*  Toluian  v.  Johnstone,  2  F.  &  F.  66. 
^  See,  also.  Baker  v.  Baker,  3    Sw. 

&  Tr.  213.     See  supra,  §§  29,  533. 

«  Ibid.  See  Sbepard  v.  Parker,  36 
N.  Y.  517. 


''  Ewer  V.  Ambrose,  3  B.  &  C.  746  ; 
Chamberlain  »■.  Sands,  27  Me.  458; 
Com.  V.  Starkweather,  10  Cush.  59  ; 
Com.  V.  Welsh,  4  Gray.  535  ;  Adams 
r.  Wheeler,  97  Mass.  67;  Bullard  v. 
Pearsall,  53  N.  Y.  230  ;  Coulter  r. 
Express  Co.  56  N.  Y.  588  ;  IVople 
V.  Safford,  5  Denio,  112;  Brewer  v. 
Porch,  17  N.  J.  L.  377  ;  Stearns  v. 
Bank.  53  Penn.  St.  490;  Ilockwood  v. 
Potindstone,  38  111.  199;  Quinn  v.  State, 
14  Ind.  589;  Hunt  v.  Coe,  15  Iowa, 
197  ;  ]\Iont|4omery  r.  Hunt,  5  Cal. 
3GG  ;  People  «;.  Jacobs,  49   Cal.  384  ; 

523 


§  549.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


argued,^  a  party  represents  him  to  the  court  as  worthy  of  credit, 
or  at  least  not  so  infamous  as  to  be  wholly  unworthy  of  it ;  and 
if  he  afterwards  attack  his  general  character  for  veracity,  this  is 
not  only  mala  fides  towards  the  tribunal,  but  it  "  would  enable 
the  party  to  destroy  the  witness  if  he  spoke  against  him,  and  to 
make  him  a  good  witness  if  he  spoke  for  him,  with  the  means 
in  his  hand  of  destroying  his  credit  if  he  spoke  against  him."  ^ 


Craig  V.  Grant,  6  Mich.  447  ;  Round- 
tree  V.  Tibbs,  4  Hay-w.  108;  Perry  v. 
Massey,  1  Bailey,  32  ;  McDaniel  v. 
State,  53  Ga.  253  ;  Griffin  v.  Wall, 
32  Ala.  149;  Fairly  v.  Fairly,  38  Miss. 
280;  Young  v.  AVood,  11  B.  Monr.  123. 
See  Am.  Law  Rev.  Jan.  1877,  261. 

1  Best's  Ev.  §  G45. 

2  B.  N.  P.  297;   2Phill.  Ev.  525. 

In  England,  by  statute,  when  a  wit- 
ness, in  the  opinion  of  the  judge,  is 
hostile  to  the  party  calling  him,  the 
witness  may  be  contradicted  by  other 
evidence,  or  by  leave  of  the  judge, 
proof  may  be  made  that  the  witness 
has  at  other  times  made  inconsistent 
statements  ;  though  in  the  latter  case 
the  "circumstances  of  the  supposed 
statement,  sufficient  to  designate  the 
particular  occasion,  must  be  men- 
tioned to  the  witness,  and  he  must  be 
asked  whether  or  not  he  has  made 
such  statement."  See  on  the  con- 
struction of  this  statute,  Taylor's 
Ev.  §  1282-3,  citing  Greenough  v. 
Eccles,  5  C.  B.  N.  S.  806  ;  Faulkner 
V.  Brine,  I  Fost.  &  F.  254  ;  Dear  v. 
Knight,  1  Fost.  &  F.  433  ;  Pound  v. 
Wilson,  4  Fost.  &  F.  301  ;  Reed  v. 
King,  30  L.  T.  290,  Exc. ;  Jackson  v. 
Thomason,  1  B.  &  S.  745  ;  Coles  v. 
Coles,  L.  R.  1  P.  &  D.  70.  As  to  sub- 
scribing witnesses,  see  supra,  §  500. 
A  provision  substantially  the  same, 
borrowed  from  the  English  statute,  is 
found  in  the  Code  of  Massachusetts. 
Ryerson  v.  Abington,  102  Mass.  530. 

The   Massachusetts    statute,   above 
noticed,  is  thus  commented  on:  "The 
St.  of  1869,  c.  425,  which  took  effect 
52-i 


before  the  trial,  provides  that  the 
party  producing  a  witness  '  may  con- 
tradict him  by  other  evidence,  and 
may  also  prove  that  he  has  made  at 
other  times  statements  inconsistent 
with  his  present  testimony;  but,  be- 
fore such  last  mentioned  proof  can  be 
given,  the  circumstances  of  the  sup- 
posed statement,  sufficient  to  desig- 
nate the  particular  occasion,  must  be 
mentioned  to  the  witness,  and  he  must 
be  asked  whether  or  not  he  has  made 
such  statements,  and,  if  so,  allowed  to 
explain  them.'  This  statute  abrogates 
the  rule  of  common  law,  by  which  a 
party  who  had  called  a  witness  was 
deemed  to  have  held  him  out  as  wor- 
thy of  credit,  and  was  therefore  not 
allowed  to  prove  by  other  witnesses 
statements  previously  made  by  him, 
inconsistent  with  his  present  testi- 
mony, which  would  not  be  admissible 
as  independent  evidence,  and  which 
could  have  no  effect  but  to  impair  his 
credit  with  the  jury.  Adams  v.  Wheel- 
er, 97  Mass.  67,  and  cases  cited.  It  is 
taken,  almost  vei'batim,  from  the  Eng- 
lish statute  of  17  &  18  Vict.  c.  125,  § 
22,  omitting,  however,  the  qualifica- 
tion of  that  act,  '  in  case  the  witness 
shall  in  the  opinion  of  the  judge  prove 
adverse  '  —  aud  the  limit  of  the  right 
to  prove  such  inconsistent  statements 
'  by  leave  of  the  judge '  only  ;  but  yet 
does  not  allow  such  statements  to  be 
proved,  without  giving  the  witness  the 
full  notice  and  opportunity  to  explain, 
to  which  a  witness  called  by  the  oppo- 
site party  is  entitled  by  the  practice 
of  the  courts  of  England,  of  the  United 


CHAP.  VIII.] 


WITNESSES  :   HOW   IMPEACHED. 


[§  549. 


In  this  country,  while  a  party  cannot  ordinarily  discredit  his 
own  witness,  his  right  to  contradict  such  witness  is  unques- 
tioned.^  We  have  also  held  that,  even  at  common  law,  adverse 
witnesses,  who  tell  a  story  contradicting  that  which  they  had 
previously  given,  may,  on  the  party  calling  them  being  thus  sur- 
prised, be  examined  as  to  their  former  statements,  in  all  cases 
where  it  would  appear  that  a  deception  has  been  practised  on 
the  party  examining,  and  that  he  has  been  guilty  of  no  negli- 


States,  and  of  New  York,  though  not 
by  that  of  our  own.  2  Taylor  on  Ev. 
(4th  ed.)  §§  1282,  1300;  Conrad  v. 
Griffey,  16  How.  38,  46,  47;  Pendle- 
ton V.  Empire  Stone  Dressing  Co.  19 
N.  Y.  13  ;  Gould  v.  Norfolk  Lead  Co. 
9  Cush.  338. 

"  So  great  a  change  in  the  rules  of 
evidence,  giving  so  extensive  a  power 
to  a  party  to  introduce  proof  in  con- 
tradiction and  disparagement  of  a  wit- 
ness put  on  the  stand  by  himself,  un- 
controlled by  the  discretion  of  the 
judge  before  whom  the  trial  is  had, 
must  be  kept  strictly  within  the  bounds 
of  the  statute,  and  certainly  cannot  be 
construed  as  enabling  a  party  to  con- 
tradict his  own  witness  in  any  respect 
in  which  the  law  would  not  permit 
him  to  contradict  a  witness  produced 
by  the  opposite  party. 

"  We  are  of  opinion  that  the  statute 
did  not  warrant  the  admission  of  the 
testimony  objected  to,  for  two  reasons: 
First,  the  surveyor,  whose  testimony 
was  sought  to  be  contradicted,  had 
only  been  asked  generally  whether  or 
not  he  had  made  such  statements  to 
the  other  Avitness;  and  no  '  circum- 
stances of  the  supposed  statement,  suf- 
ficient to  designate  the  particular  oc- 
casion,' had  been  mentioned  to  him, 
as  the  statute  expressly  requires.  An- 
gus V.  Smith,  Mood.  &  Malk.  473; 
Crowley  v.  Page,  7  C.  &  P.  789;  Con- 
rad V.  Grilley,  and  Pendleton  v.  Em- 
pire Stone  Dressing  Co.,  above  cited. 
And,   secondly,  the   testimony  which 


was  sought  to  be  contradicted  was  to 
mere  matter  of  opinion,  would  have 
been  incompetent,  if  objected  to;  and, 
being  irrelevant  and  immaterial,  could 
not  have  been  contradicted,  if  elicited 
in  cross-examination  from  a  witness 
called  by  the  opposite  party.  Lincoln 
V.  Barre,  5  Cush.  590 ;  Brockett  v. 
Bartholomew,  6  Met.  396;  Elton  v. 
Larkins,  5  C.  &  P.  385;  Tennant  v. 
Hamilton,  7  CI.  &  Fin.  172;  S.  C. 
Macl.  &  Rob.  821."  Gray  J.,  Ryer- 
son  V.  Abington,  102  Mass.  530.  See, 
also,  to  a  case  of  the  admission  of 
such  evidence  under  the  statute.  Day 
V.  Cooley,  118  Mass.  520.  That  un- 
der the  same  statute  a  party  cannot 
contradict  his  own  witness  by  proof 
of  prior  inconsistent  statements,  with- 
out first  calling  his  attention  to  such 
statements,  see  further  Newell  v.  Ho- 
mer, 120  Mass.  278. 

1  U.  S.  i;.  Watkins,  3  Cranch  C.  C. 
441  ;  Brown  v.  Osgood,  25  Me.  505; 
Swamscot  v.  Walker,  22  N.  H.  45  7  ; 
Brannon  v.  Hurscll,  112  Mass.  63  ; 
Warren  c.  Chapman,  115  ^L'lss.  584  ; 
Whitney  v  R.  U.  9  Allen,  364  ;  01m- 
stcad  t".  Bank,  32  Conn.  278  ;  Law- 
rence V.  Barker,  5  Wend.  301  ;  Stock- 
ton V.  Demulh,  7  Watts,  39  ;  WoUo 
V.  Hauver,  1  Gill,  84  ;  Rockwood  v. 
Poundstone,  38  111.  299;  Thorn  v. 
Moore,  21  Iowa,  285  ;  Spencer  v. 
White,  1  Ired.  L.  136  ;  Shelton  v. 
Hampton,  6  Ired.  L.  216  ;  Brailford  v. 
Bush,  10  Ala.  386  ;  Brown  r.  Wood, 
19  Mo.  475  ;  Norwood  v.  Kenfield,  30 

525 


§  549.]  THK    LAW    OF   EVIDENCE.  [BOOK  II. 

gence  or  laches.^  In  England,  the  right  to  ask  as  to  such  former 
statements  has  been  ranch  agitated,  though  the  weight  of  au- 
thority is  against  the  right  so  to  impeach,  unless  with  the  lim- 
itation just  expressed.2  On  the  other  hand  it  is  urged -^  'Hhat, 
although  a  party  who  calls  a  person  of  bad  character  as  witness, 
knowing  him  to  be  such,  ought  not  to  be  allowed  to  defeat  his 
testimony  because  it  turns  out  unfavorable  to  him,  by  direct 
proof  of  general  bad  character,  —  yet  it  is  only  just  that  he 
should  be  permitted  to  show,  if  he  can,  that  the  evidence  has 
taken  him  by  surprise,  and  is  contrary  to  the  examination  of  the 
witness,  preparatory  to  the  trial ;  that  this  course  is  necessary, 
as  a  security  against  the  contrivance  of  an  artful  witness,  who 
otherwise  might  recommend  himself  to  a  party  by  the  promise 
of  favorable  evidence  (being  really  in  the  interest  of  the  op- 
posite party),  and  afterwards  by  hostile  evidence  ruin  his  cause  ; 
that  the  rule,  with  the  above  exception,  as  to  offering  contradic- 
dictory  evidence,  ought  to  be  the  same,  whether  the  witness  is 
called  by  the  one  party  or  the  other,  and  that  the  danger  of  the 
jury's  treating  the  contradictory  matter  as  substantive  testimony, 
is  the  same  in  both  cases ;  that,  as  to  the  supposed  danger  of  col- 
lusion, it  is  extremely  improbable,  and  would  be  easily  detected. 
It  may  be  further  remarked,  that  this  is  a  question,  in  which  not 
only  the  interests  of  litigating  parties  are  involved,  but  also  the 
more  important  general  interests  of  truth,  in  criminal  as  well  as 
in  civil  proceedings ;  that  the  ends  of  justice  are  best  attained, 
by  allowing  a  free  and  ample  scope  for  scrutinizing  evidence  and 
estimating  its  real  value ;  and  that  in  the  administration  of  crim- 
inal justice,  more  especially,  the  exclusion  of  the  proof  of  con- 
trary statements  might  be  attended  with  the  worst  consequences." 
So  far,  however,  as  concerns  impeaching  witnesses  generally,  this 
view  does  not  now  obtain.^     But  a  party  bond  fide  surprised  at 

Cal.  393 ;   People  v.  Jacobs,  49  Cal.  «  ph.  &  An.  Ev.  905. 

384.  *  "  Whatever  differences  of  opinion 

1  State  V.  Lull,  37  Me.  246  ;  State  have  existed  elsewhere,  I  understand 
V.  Benner,  64  Me.  267  ;  Cronan  v.  the  rule  in  this  state  to  be  settled, 
Cotting,  99  Mass.  334  ;  Brown  t'.  Bel-  that  a  party  may  not  impeach,  either 
lows,  4  Pick.  179  ;  BuUard  t'.  Pearsall,  by  general  evidence  or  by  proof  of 
53  N.  Y.  230  ;  Bank  of  North  Lib.  contradictory  statements  made  out  of 
V.  Davis,  6  W.  &  S.  285.  court,    a  witness  whom   he   has  pre- 

2  See  2  Phil.  Ev.  528  (10th  ed.)  ;  sented  to  the  court  as  worthy  of  credit. 
Melhuish  v.  Collier,  15  Q.  B.  578.  He  may  contradict  him  as  to  a  fact 

526 


CHAP,  vni.] 


WITNESSES  :    HOW   IMPEACHED. 


[§  549. 


the  unexpected  testimony  of  his  witness  may  be  permitted  to  in- 
terrogate the  witness,  as  to  previous  declarations  alleged  to  have 
been  made  by  the  latter,  inconsistent  with  his  testimony,  the 
object  being  to  probe  the  witness's  recollection,  and  to  lead  him, 
if  mistaken,  to  review  what  he  has  said.  Such  corrective  testi- 
mony, also,  is  receivable,  to  explain  the  attitude  of  the  party 
calling  the  witness.  But  where  the  sole  object  of  the  testimony 
so  offered  is  to  discredit  the  witness,  it  will  not  be  received.^ 
material  in   the   cause,  although   the     plaintiff,  under  objections,  had  been 


effect  of  that  proof  may  be  to  discredit 
him,  but  he  can  not  adduce  such  a 
contradiction  when  it  is  only  material 
as  it  bears  upon  credibility.  Thus, 
in  this  case,  the  plaintiff  was  at  liberty 
to  contradict  the  witness  as  to  his  not 
having  driven  on  the  walk,  because 
that  fact  was  generally  material  in  the 
cause,  but  was  not  at  liberty  to  show 
that,  after  the  afTair  was  over,  he  had 
made  a  statement  which  conceded 
that  he  had  driven  on  the  walk;  be- 
cause that  statement  did  not  bear  upon 
the  question  whether  he  did  or  did  not 
drive  upon  the  walk,  but  only  upon 
the  question  whether  his  testimony 
that  he  did  not  was  worthy  of  belief. 
In  People  v.  SaflFord,  5  Denio,  112, 
where  this  point  was  material,  the 
court,  after  adverting  to  the  conflict  of 
cases  and  text-books  on  the  subject, 
proceeded,  as  is  said,  to  consider  it  on 
principle  and  determine  that  a  party 
cannot  prove  contradictory  statements 
made  by  his  own  witness.  The  court 
held  that  such  evidence  is  only  allow- 
able with  a  view  to  the  impeachment 
of  the  witness,  and  is  not  open  to  the 
party  producing  him. 

"  In  Thompson  v.  Blanchard,  4  N. 
Y.  303,  311,  a  new  trial  was  granted 
in  this  court  for  a  violation  of  the 
rule  in  question.  The  plaintiff  had 
called  on  Wheeler  as  a  witness,  who, 
among  other  things,  had  stated  favor- 
ably to  the  defendant  certain  declara- 
tions made  on  the  execution  of  papers 
material    in    that    controversy.     The 


allowed  to  prove  a  contradictory  ver- 
sion of  what  took  place  at  the  time  in 
question,  and  also  to  show  that  Wheel- 
er had  subsequently  made  statements 
contradictory  to  his  testimony  on  the 
trial.  For  the  admission  of  this  latter 
evidence  a  new  trial  was  granted. 
The  court,  after  stating  the  general 
rule,  and  showing  that  in  accordance 
with  it  the  plaintiff  could  contradict 
Wheeler's  evidence  as  to  what  took 
place,  proceed  to  say,  the  plaintiff 
went  further  and  gave  evidence  that 
Wheeler,  at  a  subsequent  time,  made 
statements  contradictory  of  the  state- 
ments to  which  he  testified.  Such 
evidence  is  only  allowable,  in  any  case, 
with  a  view  to  the  impeachment  of  the 
witness,  —  a  ground  not  open  to  the 
party  producing  the  witness. 

"  There  is  a  class  of  cases  in  which 
a  party  who  calls  a  witness  has  been 
allowed  to  show,  by  his  own  examina- 
tion at  least,  if  not  by  introducing 
proof  by  others,  that  he  hatl  previous- 
ly stated  the  facts  in  a  dilferent  man- 
ner; but  this  seems  to  stand  upon  the 
ground  of  surprise,  as  contrary  to  what 
the  party  had  a  right  or  was  led  to 
believe  he  would  testify,  or  of  deceit 
through  the  influence  of  the  other 
party.  1  Greenl.  §444,  and  note  1; 
Melhuish  v.  Collier,  15  Ad.  cSi  El.  (N. 
R.)  878  (69  Eng.  Com.  Law).  But 
no  such  special  ground  of  exception 
ai)pears  in  this  case."  Johnson,  J., 
Coulter  t'.  Express  Co.  SG  N.  Y.  588. 

1  Ibid. ;    Bullard  v.  rcarsall,  53  N. 

627 


§  550.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


A  party's 
witnesses 
are  those 
whom  he 
vohiiifarily 
examines 
in  chief. 


§  550.  It  sometimes  becomes  important,  in  view  of  the  rule 
just  stated,  as  well  as  of  that  which  gives  the  right  of 
cross-examination  to  an  adverse  party,  to  determine 
who  are  a  party's  witnesses,  in  such  a  sense  that  they 
cannot  be  discredited  or  cross-examined  by  him.  A 
party,  it  may  be  said  at  the  outset,  who  calls  and  causes 
to  be  sworn  a  competent  witness,  primd  facie  makes  such  wit- 
ness his  own,  so  as  to  open  the  witness  to  cross-examination  by 
the  opposite  side.^  It  is  otherwise,  however,  if  such  witness  be 
called  and  sworn  by  mistake,  and  is  dismissed  before  questions 
are  asked ;  ^  or  if  he  be  called  for  merely  formal  purposes  (e.  g. 
to  prove  an  instrument)  ;  ^  or  if  the  witness's  examination  be 
stopped  at  the  outset  by  the  judge ;  *  or  if  there  be  a  manifest 
surprise  in  the  testimony.^  A  fortiori^  the  mere  enforcing  the 
attendance  of  a  witness  by  a  subpoena  does  not  make  him  the 
witness  of  the  party  who  issues  the  subpoena,  if  the  witness  be 
not  sworn.^  In  any  view,  a  party  surprised  at  the  testimony  of 
a  witness  is  entitled,  as  we  have  already  seen,  to  cross-examine 
the  witness  as  to  whether  he  has  not  previously  made  contra- 
dictory statements,  though  not  to  contradict  the  witness's  an- 


swers. 


Y.  230,  quoted  in  §  550.  See  an  in- 
teresting article  on  this  topic  in  Am. 
Law  Rev.  Jan.  1877,  261. 

1  "Wood  V.  Mackinson,  2  M.  &  Rob. 
273;  Reed  v.  James,  1  Stark.  R.  132; 
R.  V.  Brooke,  2  Stark.  R.  472;  Toole 
V.  Nichol,  43  Ala.  406;  Page  v.  Kan- 
key,  6  Mo.  433;  Brown  v.  Burrns,  8 
Mo.   26. 

2  Rush  V.  Smith,  1  C,  M.  &  R.  94; 
Clifford  V.  Hunter,  3  C.  &  P.  16; 
Wood  V.  Mackinson,  2  M.  &  Rob.  273; 
Beebe  v.  Tinker,  2  Root,  160;  Aus- 
tin V.  State,  14  Ark.  555.  Though 
see  Linsley  v.  Linsley,  26  Vt.  123; 
Lunday  v.  Thomas,  26  Ga.  537. 

8  Watson  V.  Ins.  Co.  2  Wash.  C.  C. 
480 ;  Dennett  v.  Dow,  17  Me.  19  ;  Sho- 
rey  v.  Hussey,  32  Me.  579;  Harden  v. 
Hays,  9  Penn.  St.  151  ;  Williams  v. 
Walker,  2  Rich.  Eq.  291;  Thornton 
V.  Thornton,  39  Vt.  122.     See   Beal 

528 


V.  Nichols,  2  Gray,  262.  See  infra, 
§  730.     Supra,  §  500. 

4  Creevy  v.  Carr,  7  C.  &  P.  64. 

6  Melhuish  v.  Collier,  15  Ad.  &  El. 
(N.  S.)  878;  People  v.  Safford,  5  Denio, 
118;  Sanchez  v.  People,  22  N.  Y.  147; 
Harden  v.  Hays,  9  Penn.  St.  151 ;  Com. 
V.  Lamberton,  2  Brewst.  565;  Champ 
V.  Com.  2  Mete.  (Ky.)  17. 

^  Summers  v.  Moseley,  2  C.  &  M. 
477;  Perry  v.  Gibson,  1  A.  &  E.  48; 
Davis  V.  Dale,  4  C.  &  P.  335. 

■^  "  Where  a  witness  disappoints 
the  party  calling  him,  by  testifying 
contrary  to  the  expectations  and 
wishes  of  such  party,  it  is  a  conceded 
rule  that  the  latter  shall  not,  for  the 
purpose  of  relieving  himself  from  the 
effect  of  such  evidence,  be  permitted 
to  prove  that  the  -witness  is  a  person 
of  bad  character  and  unworthy  of  be- 
lief.    There  is  also  a  great  weight  of 


CHAP.  VIII.] 


WITNESSES:    HOW   IMPEACHED. 


[§  551. 


§  551.  A  witness  called  by  the  opposing  party  can,  it  is  con- 
ceded on  all  sides,  be  discredited  by  pi'oving  that  on  a   q^    ^.j 
former  occasion  he  made  a  statement  inconsistent  with   witness 

mavbecon- 

his  statement    on    trial,    provided   such    statement   be    tradicted 
material  to  the  issue. ^     But  the  statement  which  it  is     ^  P'"0'*'"S 


authoi'ity  sustaining  the  position  that, 
under  such  circumstances,  the  party 
calling  the  witness  should  not  be  al- 
lowed to  prove  that  he  has  on  other 
occasions  made  statements  inconsistent 
with  his  testimony  at  the  trial,  when 
the  sole  object  of  such  proof  is  to  dis- 
credit the  witness.  But  it  is  well  es- 
tablished that  the  party  calling  the 
witness  is  not  absolutely  bound  by  his 
statements,  and  may  show  by  other 
witnesses  that  they  are  erroneous. 
The  further  question  has  frequently 
arisen  whether  the  party  calling  the 
witness  should,  upon  being  taken  by 
surprise  by  unexpected  testimony,  be 
permitted  to  interrogate  the  witness 
in  respect  to  his  own  previous  decla- 
rations, inconsistent  with  his  evidence. 
Upon  this  point  there  is  considerable 
conflict  in  the  authorities.  We  are 
of  opinion  that  such  questions  may 
be  asked  of  the  witness  for  the  pur- 
pose of  probing  his  recollection,  re- 
calling to  his  mind  the  statements  he 
has  previously  made,  and  drawing  out 
an  explanation  of  his  apparent  incon- 
sistency. This  course  of  examination 
may  result  in  satisfying  the  witness 
that  he  has  fallen  into  error,  and  that 
his  original  statements  were  correct, 
and  it  is  calculated  to  elicit  the  truth. 
It  is  also  proper,  as  showing  the  cir- 
cumstances which  induced  the  party 
to  call  him.  Though  the  answers  of 
the  witness  may  involve  him  in  con- 
tradictions calculated  to  impair  his 
credibility,  that  is  not  suflicient  rea- 
son for  excluding  the  incjuiry.  Proof 
by  other  witnesses  that  his  statements 
are  incorrect,  would  have  the  same 
effect,  yet  the  admissibility  of  such 
VOL.  I.  34 


proof  cannot  be  questioned.  It  is 
only  evidence  offered  for  the  mere 
purpose  of  impeaching  the  credibility 
of  the  witness,  which  is  inadmissible 
when  offered  by  the  party  calling  him. 
Inquiries  calculated  to  elicit  the  facts, 
or  to  show  to  the  witness  that  he  is 
mistaken  and  to  induce  him  to  correct 
his  evidence,  should  not  be  excluded 
simply  because  they  may  result  unfa- 
vorably to  his  credibility.  In  case  he 
should  deny  having  made  previous 
statements  inconsistent  Avith  his  testi- 
mony, we  do  not  think  it  would  be 
proper  to  allow  such  statements  to  be 
proved  by  other  witnesses;  but  where 
the  questions  as  to  such  statements 
are  confined  to  the  witness  himself, 
we  think  they  are  admissible.  As  a 
matter  of  course,  such  previous  un- 
sworn statements  are  not  evidence, 
and,  when  a  trial  is  before  a  jury,  that 
instruction  should  be  given. 

"  The  cases  in  which  these  ques- 
tions have  been  discussed  are  numer- 
ous, and  we  have  not  deemed  it  useful 
to  cite  them  in  detail,  but  rather  to 
state  the  conclusions  which  we  have 
reached,  after  a  careful  examination 
of  the  authorities.  The  principal 
cases  in  this  state  in  which  the  sub- 
ject is  referred  to  are  :  Pcoj)le  r.  8af- 
ford,  5  Den.  118  ;  Thumpsun  r. 
Blanchard,  4  Comst.  311;  Sanciiez  v. 
People,  22  N.  Y.  147;  and  in  Eng- 
lan<l  it  is  very  thoroughly  discussed 
in  Mclhuish  i;.  Collier,  15  Adol.  &  Ell. 
N.  S.  878.  It  has  since  been  there 
regulated  by  act  of  parliament,  passed 
in  1854."  Rapallo,  J.,  IJuilard  v. 
Pearsall,  53  N.  Y.  230. 

1  Crowley  c.  Page,  7   C.  &  P.  789; 

529 


§  551.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


that  he  intended  to  contradict  must  involve  facts  in  evidence. 
stated  (lif-  If  Confined  to  opinion,  when  opinion  is  not  at  issue,  or 
ferentiy.  ^^  other  irrelevant  matters,  the  cross-examining  party 
is  bound  by  the  answer. ^  Thus  the  opinion  of  a  servant,  as 
to  whether  his   master  was  to  blame  in    a   collision,    being  ir- 


Andrews   v.    Askey,    8    C.    &    P.    7; 
Queen's  case,   2  B.  &  B.  313;  Angus 
r.    Smith,   M.   &  M.   473  ;  Wright  v. 
De  Klyne,   Pet.   C.    C   199;  U.  S.  v. 
Holmes,   1   Cliff.  98;  State  t'.  Kin^s- 
biirv,  58  Me.  238;  Gerrish  v.  Tike,  6 
N.  'h.   510;  Law  v.  Fairfield,  46  Vt. 
425;  Benjamin  r.  Wheeler,  8  Gray, 
409;    Emerson  v.   Stevens,    6   Allen, 
112;  Tyler  v.  Pomeroy,  8  Allen,  480; 
Marsh   v.   Hammond,   11   Allen,   483; 
Carruth   v.   Bayley,    14    Allen,    532; 
Foot  V.  Hunkins,  98  Mass.  523;  Hook 
V.    George,   108   Mass.    324;    Com.  v. 
Bean,    111    Mass.  438;    Beardsley  v. 
Wildman,  41  Conn.  516;  Honstine  v. 
O'Donnell,   5    Hun,    472  ;    Schell   v. 
Plumb,  55  N.  Y.  592;  Stable  v.  Spohn, 
8   Serg.  &  R.   317;  Cowden  v.  Rey- 
nolds, 12  Serg.  &  R.  281 ;  Com.  v.  Mar- 
row, 3  Brewst.  402;  Schlater  v.  AVin- 
penny,    75  Penn.    St.   321  ;  Pittsburg 
R.     R.    V.    Andrews,    39    Md.    329  ; 
Mimms    v.    State,    16    Oh.    St.   221  ; 
Forde  v.  Com.  16  Grat.  547;  Stewart 
V.  People,  23  Mich.  63 ;  Galena  R.  R. 
V.  Fay,  16  111.  558;  Craig  v.  Rohrer, 
63  111.  325;  Harris  v.   State,  30  Ind. 
131;  State   v.   Pulley,    63   N.    C.   8; 
State  I'.  Johnson,  12  Minn.  476;  Wil- 
liamson V.  Peel,  29  Iowa,  458;  Kee- 
rans  v.  Brown,  68  N.  C.  43;  Floyd  v. 
Wallace,  31  Ga.  688  ;  Powers  r.  State, 
44   Ga.  209;  State  y.  Marler,   2  Ala. 
43;  Moore  v.  Jones,  13  Ala.  296;  Flash 
V.    Ferri,    34     Ala.     186;     Garret   v. 
State,  6    Mo.  1 ;  McKern   v.   Calvert, 
59  Mo.  244  ;   State  v.  Mulholland,  16 
La.  An.  376;  Lewis  i'.  State,  4  Kans. 
296;  Mc Daniel  v.   Baca,   2   Cal.  326; 
People  r.  Robles,  29  Cal.  421;  People 
V.  Devine,  44  Cal.  452. 

630 


"  We  are  of  the  opinion  that  one 
of  the  exceptions  taken  by  the  de- 
mandant at  the  trial  must  be  sus- 
tained. For  the  purpose  of  contra- 
dicting Addison  A.  Moseley,  who  was 
a  witness  for  the  tenant,  the  demand- 
ant offered  the  written  answers  of  the 
witness  made  by  him  in  an  examina- 
tion under  oath  before  a  register  in 
bankruptcy,  but  the  court  excluded 
them.  We  think  these  answers  should 
have  been  admitteil.  They  fall  with- 
in the  rule  which  allows  a  witness  to 
be  impeached  by  proof  that  he  has 
made  conflicting  statements  at  other 
times.  The  fact  that  the  examination 
was  not  completed  and  the  answers 
not  signed,  affects  the  weight  of  the 
testimony,  but  does  not  render  it  in- 
competent. The  answers,  though  not 
written  by  the  hand  of  the  witness, 
were  reduced  to  writing  by  his  agent, 
at  his  dictation,  and  were  admissible 
as  his  statements.  The  case  is  within 
the  principle  of  Lynde  v.  McGregor, 
13  Allen,  182."  Morton,  J.,  Knowl- 
ton  V.  Moseley,  110  Mass.  138. 

1  Greenl.  Ev.  §  449;  Elton  v.  Lar- 
kins,  5  C.  &  P.  385;  Brackett  v. 
Weeks,  43  Me.  291;  Dewey  r.  Wil- 
liams, 43  N.  H.  384;  Sumner  v. 
Crawford,  45  N.  H.  416;  Combs  v. 
Winchester,  49  N.  H.  13  ;  Fletcher 
V.  R.  R.  1  Allen,  9;  Com.  v.  Mooney, 
110  Mass.  99;  Howard  v.  Ins.  Co.  4 
Denio,  502;  Bearss  i'.  Copley,  10  N. 
Y.  93;  Patten  v.  People,  18  Mich. 
314.  See  State  v.  Reed,  60  Me.  550; 
McKern  i'.  Calvert,  59  Mo.  244;  Mc- 
Neill V.  Arnold,  22  Ark.  477. 


CHAP.  VIII.]  WITNESSES  :    HOW   IMPEACHED.  [§  553. 

relevant,  evidence  of  former  conflicting  declarations  of  the  ser- 
vant cannot  be  received  in  contradiction.^  Opinion,  however,  or 
statement  that  goes  to  show  bias,  is  so  far  relevant,  that  a  denial 
of  its  expression  is  admissible.^  So  the  opinion  of  an  expert  is 
material,  and  may  be  contradicted  by  proof  that  he  had  previ- 
ously expressed  contradictory  opinions.^ 

§  552.  It  is  not  necessary,  in  order  to  introduce  such  contra- 
dictory evidence,  that  it  should  contradict  statements  made  by 
the  witness  in  his  examination  in  chief.  Ordinarily  the  process 
is  to  ask  the  witness  on  cross-examination  whether  on  a  former 
occasion  he  did  not  make  a  statement  conflicting  with  that  made 
by  him  on  his  examination  in  chief.  But  the  conflict  may  take 
place  as  to  matters  originating  in  the  cross-examination  ;  and 
then,  if  such  matters  are  material,  contradiction  by  this  process 
is  equally  permissible.*  Thus  when  the  pi'osecuting  witness,  on 
the  trial  of  an  indictment  for  an  indecent  assault  on  her  when 
driving,  on  being  asked  on  cross-examination  whether  she  had 
not  said  to  the  defendant  subsequent  to  the  event  in  litigation, 
that  she  would  kiss  him  if  he  would  take  her  to  drive,  denied 
she  had  said  so,  it  was  held  that  she  could  be  contradicted  by 
calling  a  witness  to  prove  that  she  had  made  such  a  statement.^ 

§  553.  When  the  question  is  as  to  former  expressions  of 
opinion  in  writing,  it  is  usually  enough  if  the  writing  is  shown 
or  read  to  the  witness  in  advance  ;  and  then,  if  the  genuineness 
of  the  writing  is  admitted  or  proved,  it  can  be  put  in  evidence.^ 
Whether  the  contents  of  such  paper  can  be  put  to  him,  or 
whether  it  must  be  first  shown  him,  has  been  already  discussed.' 
When  the  declarations  were  oral,  it  is  necessary  to  call  persons 
who  heard  them.     They  cannot  be  proved  by  a  report  contain- 

1  Lane  v.  Bryant,  9  Gray,  245.  ■*  Hogan  v.    Cregan,  (J    llobt.    (N. 

2  Chapman  v.  Coffin,  14  Gray,  454  ;     Y.)  138. 

O'Neill  V.  Lowell,  6  Allen,  110;  Enier-  ^  Com.  j,.  Bean,  1 1 1  Mass.  438.    To 

son  y.  Stevens,  6  Allen,  112;  Couillani  the  same  effect,  Fries  v.  Brugler,  12 

V.   Duncan,   6    Allen,  440;  Gaines    c.  N.  J.  L.  79.     Sec,  however,  as  qnalify- 

Com.  50  Penn.   St.  319;  Beaubien  i-.  ing  above,  State  i:  Patterson,  2  Ired. 

Cicotte,    12    Mich.   459;  Robinson    v.  L.  34G;  Dunn  i'.  Dunn,  1 1  Mich.  284. 

Blakely,   4    Rich.   (S.    C.)   586.      See  «  Kumcrtzc  r.  Bank,  49   X.  Y.  577; 

supra,  §§  509-13.  De  Sobry  v.  Dc   Laistrc,  2    liar.  &  J. 

8  Saunderson  v.  Nashua,  44  N.   IL  191.      See  Iluiiillon  Co.  r.  (ioodrich, 

492.  6  Allen,  191. 

T  Supra,  §  68. 

531 


§  555.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

ing  the  evidence  of  a  prior  trial,  unless  such  report  is  sworn  to 
by  a  witness  producing  it,^  or  is  signed  by  the  impeaclicd  wit- 
ness.^ The  witness  may  be  contradicted  by  proof  of  prior  con- 
t^radictory  statements  before  a  grand  jury  ;  ^  or  by  proof  tliat  he 
'now  states  facts  which  on  a  former  trial  he  omitted  to  state.* 

§  554.  Generally  whenever,  on  a  former  occasion,  it  was  the 
duty  of  the  witness  to  state  the  whole  truth,  it  is  admissible  to 
show  that  the  witness,  in  his  statement,  omitted  facts  sworn  to 
by  him  at  the  trial.  Thus  in  a  Massachusetts  case,^  a  witness 
for  the  plaintiff  having  testified  that  a  former  owner  of  a  piece 
of  land  had  stated  to  him  that  he  owned  beyond  the  fence  which 
was  its  apparent  boundary,  the  presiding  judge  permitted  the 
defendant  to  show  that  the  witness  was  one  of  three  appraisers 
of  the  estate  of  such  owner,  and  when  appraising  this  land  did 
not  state  that  the  late  owner  claimed  beyond  the  fence.  "  It 
was  his  duty,  as  appraiser,  to  inform  his  associates  of  his  knowl- 
edge as  to  the  extent  of  the  land  to  be  appraised ;  and  the  fact 
that  he  did  not  inform  them  that  the  owner  claimed  beyond  the 
fence,  afforded  some  presumption  that  he  was  mistaken  when  he 
testified  that  the  owner  had  so  informed  him."  "  If  a  witness 
has  made  a  previous  statement  of  the  transaction  in  regard  to 
which  he  testifies,  under  such  circumstances  that  he  was  called 
upon  as  a  matter  of  duty  or  interest  to  state  the  whole  truth  as 
to  the  transaction,  it  might  be  competent  to  put  such  previous 
statement  in  evidence,  to  show  that  he  then  omitted  material 
parts  of  the  transaction  to  which  he  now  testifies.  The  fact  that 
he  did  not  then  state  the  omitted  parts  may  afford  some  pre- 
sumption that  they  did  not  happen,  and  thus  tend  to  contradict 
his  testimony.  But  the  admissibility  of  such  evidence  depends 
upon  the  question  whether  the  previous  statement  was  made 
under  such  circumstances  that  such  presumption  or  inference 
fairly  arises."  ^ 

§  555.  When  it  is  thus   intended   to   discredit  a  witness  by 

1  Webster  v.   Calden,  55  Me.  165;         3  See    infra,   §    601.       Burdick    v. 
Neilson  v.  Ins.   Co.  1  Johns.  R.  301;     Hunt,  43  Ind.  381. 

Huff  V.  Bennett,  6  N.  Y.   337;  Boyd         •*  Briggs  v.  Taylor,  35  Vt.  57.     See 

V.  Bank,   25  Iowa,   255.      See  Baylor  Nye  v.  Merriam,  35  Vt.  438. 

V.  Smithers,  1  T.  B.  Monr.  6.  5  Haydeu  v.  Stone,  112  Mass.  346. 

2  Wormeley  v.    Com.   10    Grattan,         ^  Morton,  J.,  Perry  v.   Breed,  117 
658.  Mass.  165. 

532 


CHAP.  VIII.] 


WITNESSES  :    HOW   IMPEACHED. 


[§  555. 


showing  that  he  has  on   former  occasions  made  statements   in- 
consistent with  those  made  on  trial,  it  is  usually  req-   Usually 
uisite  to    ask  him,  on  cross-examination,  whether   he   ni'u"t^first 
has  not  made  such  prior  contradictory  statements.    The   ''« ''^^^^^  as 

....  to  such 

question  to  this  effect  should  specify,  so  it  is  said,  the  statements. 
person  to  whom  the  alleged  contradictory  statements  were  made, 
and  as  far  as  possible  the  circumstances.  Only  upon  a  denial,  direct 
or  qualified,  by  the  witness,  that  such  statements  were  made,  can 
proof  of  them  be  offered.  The  object  of  this  condition  is  to  enable 
the  witness  to  recall  the  incidents,  and  to  explain  the  inconsis- 
tency, if  there  be  such.^  So  a  witness,  not  a  party,  cannot  be 
impeached  by  putting  in  evidence  his  letters,  unless  his  attention 
be  called  to  these  letters  on  his  cross-examination,  and  the  other 
party  have  an  opportunity  of  examining  him  thereto.^  It  has 
been  even  held  that  where  the  deposition  of  a  deceased  witness  had 
been  by  consent  read  in  evidence,  another  and  conflicting  depo- 
sition of  the  same  witness  at  a  prior  trial  could  not  be  read  in 
order  to  impeach  the  witness,  as  the  attention  of  the  witness  had 
not  been  called  to  the  conflict.'^  The  substance  of  the  alleged 
conflicting  statement   is  all  that  need   be  put  to  the  witness.^ 


1  Carpenter  v.  Wall,  11  Ad.  &  El. 
804;  Anjius  v.  Smith,  1  M.  &  M.  4  73; 
R.  V.  Shellard,  9  C.  &  P.  27  7;  Conrad 
V.  Griffey,  16  How.  38;  McKinney  v. 
Neil,  1  IMcLean,  540;  Downciri-.  Dana, 
19  Vt.  338;  Everson  v.  Carpenter, 
17  Wend.  419  ;  Romertze  v.  Bank,  2 
Sweeny,  82;  Gilbert  u.  Safje,  5  Lans. 
289;  Sloan  v.  R.  R.  45  N.  Y.  125; 
Gaffney  v.  People,  50  N.  Y.  423  ; 
thoujrh  see  Clapp  v.  Wilson,  5  Denio, 
285;  McAteer  r.  McMullen,  2  Penn.  St. 
32;  Wright  u.  Cuinsty,41  Penn.  St.  102; 
Walden  v.  Finch,  70  Penn.  St.  4f)0; 
Franklin  Bk.  v.  Steam  Co.  1 1  Gill  &  J. 
28;  Iligcrins  v.  Carlton,  28  Md.  115; 
Unis  V.  Charlton,  12  Grat.  484;  King  v. 
Wicks,  20  Ohio,  87;  Runyan  i,-.  Price.  15 
Oh.  St.  1;  Cook  v.  Hunt,  24  111.  535; 
Root  V.  Wood,  34  111.  283;  Winslow  v. 
Newlan,  45  111.  145;  Doe  v.  Reagan,  5 
Blackf.  217;  Weinzorplin  v.  State,  7 
Blackf.   186;    State  v.  Ostrander,  18 


Iowa,  435;  State  v.  Collins,  32  Iowa 
36 ;  Ketchingman  v.  State,  6  Wise. 
426;  Smith  v.  People,  2  Mich.  415; 
State  V.  Marlcr,  2  Ala.  43  ;  Weaver  v. 
Traylor,  5  Ala.  5G4 ;  Carlisle  v.  Ilun- 
ley,  15  Ala.  623;  Hughes  v.  Wilkin- 
son, 35  Ala.  453;  Matthis  v.  State,  33 
Ga.  24;  Able  v.  Shields,  7  Mo.  129; 
Spaunhorst  v.  Link,  46  Mo.  197; 
Beebe  v.  De  Baun,  8  Ark.  510  ;  Dren- 
nen  i'.  Lindsey,  15  Ark.  359;  People  i". 
Devinc,  44  Cal.  452;  Baker  v.  Joseph, 
16  Cal.  173;  Rice  r.  Cunningham,  29 
Cal.  492. 

2  Leonard  v.  Kingsley,  50  Cal.  628. 

8  Hubbard  V.  Briggs,' .'il  N.  Y.  518. 
See,  also,  Runyan  r.  Price,  15  Oh.  St.  1. 

4  Patchin  i-'.  Ins.  Co.  13  N.  Y.  268; 
Bennett  i'.  O'Byrne,  23  Ind.  604;  State 
V.  Iloyt,  13  Minn.  132;  Edwards  v. 
Sullivan,  8  Ired.  Law,  302  ;  Nelson 
i).  Iverson,  24  Ala.  9 ;  Armstrong  i-. 
IlulVstutler,  19  Ala.  51. 

633 


•§  558.]  TIIK   LAW    OF   EVIDENCE.  [BOOK  II. 

There  must  be  a  specification,  however,  sufficient  to  enable  the 
witness  to  recall  the  facts. ^ 

§  556.  In  some  jurisdictions  it  is  not  considered  requisite  to 
ask  a  witness  beforehand  as  to  whether  he  had  not  stated  differ- 
ently ;  2  in  other  cases  it  has  been  left  to  the  discretion  of  the 
court. ^ 

§  557.  At  common  law,  as  we  have  seen,  when  the  statements 
are  in  writing,  they  must  be  first  shown  to  the  witness.*  Gen- 
erally, however,  the  rule  does  not  apply  when  the  impeaching 
statements  are  found  in  depositions  by  the  same  witness  in  the 
same  cause,^  though  it  has  been  held  such  impeaching  depositions 
cannot  be  read  unless  the  witness  is  first  allowed  the  opportu- 
nity of  explaining  them.^  Parties,  when  appearing  as  witnesses, 
may  be  in  like  manner  contradicted.'^  How  far  a  witness  is  dis- 
credited by  proof  of  inconsistent  statements,  has  been  already 
noticed.^  It  may  be  however  observed  generally  that  such  in- 
consistency does  not  in  itself  destroy  credibility,  but  that  its 
effect  is  to  be  gauged  by  the  circumstances  of  the  case.^  On 
reexamination  tlie  impeached  witness  may  be  asked  as  to  the 
details  of  the  alleged  contradiction. ^° 

§  558.  To  make  the  impeaching  statement  admissible  it  must 
be  a  contradictory  opposite  of  the  statement  made  by  the  wit- 
ness on  trial.  If  the  two  statements  are  reconcilable,  one  can- 
not be  received  to  contradict  the  other.^^     "  It  is  not  necessary," 

1  Pendleton  v.  Empire  Co.  19  N.  Y.         *  Supra,  §  68. 

13;  Joy  17.  State,  14  Ind.  139.     Supra,  ^  Downer    v.    Dana,    19    Vt.    338; 

§  514.  Bryan  v.  Walton,  14  Ga.  185;  Moly- 

2  U.  S.  V.  White,  5  Cranch  C.  C.  neaux  v.  Collier,  30  Ga.  731  ;  Hughes 
457;    Ilowland    v.    Conway,    1    Abb.  v.  Wilkinson,  35  Ala.  453. 

Adm.  281;  Ware  v.  Ware,  8  Greenl.  «  Samuels  u.  Griffith,  13  Iowa,  103; 

42;    Wilkins  v.  Babbershall,  32  Me.  Bradford  r.  Barclay,  39  Ala.  33. 

184  ;  New  Portland  v.  Kingfield,  55  ''  Gibbs  v.  Linabury,  22  Mich.  479. 

Me.  172  ;  Titus  c.  Ash.  24  N.  H.  319;  See  supra,  §  484. 

Cook  c.  Brown,  34  N.  H.  460;  Hedge  «  Supra,  §  412. 

V.  Clapp,  22  Conn.  262.     See  Brown  v.  ^  Dunn  i'.  People,  29  N.  Y.  523. 

Bellows,  4  Pick.  188;  Gould  v.  Norfolk  ^o  State  v.  Winkley,  14  N.  H.  480. 

Co.  9    Cush.   338;    Com.   r.  Hawkins,  "  Hall  r.  Young,  37  N.  H.  134;  City 

3  Gray,  463.  Bank  v.  Young,  43  N.  H.  457;  Hine  v. 

3  See  Sharp  v.  Emmet,  5  Whart.  Pomeroy,  39  Vt.  211;  Starks  v.  Sikes, 
288;  McAteer  v.  McMullen,  2  Barr,  8  Gray,  609;  Cooley  v.  Norton,  4  Cush. 
32;  Kay  v.  Fredrigal,  3  Barr,  221;  93;  First  Baptist  Church  v.  Ins.  Co. 
State  V.  Hoyt,  13  Minn.  132.  28  N.  Y.  153.     See  Travis  v.  Brown, 

534 


CHAP.  VIII.] 


WITNESSES  :    HOW   IMPEACHED. 


[§  560. 


however,  "  that  the  contradiction  should  be  in  terms  ;  statements 
by  the  witness,  inconsistent  with  his  testimony  upon  mitterial 
matters,  may  be  proved  against  him."  ^  Impeaching  evidence  is 
admissible,  even  though  the  witness,  when  cross-examined  as  to 
the  contradicting  expressions,  should  say  he  is  uncertain  wliether 
he  made  them  or  not.^ 

§  559.  In  order  to    avoid   an  interminable    multiplication    of 
issues,  it  is  a  settled  rule  of  practice,  that  when  a  wit-    witn« 
ness  is  cross-examined   on  a  matter   collateral  to   the 
issue,  he  cannot,  as  to  his  answer,  be  subsequently  con-   'I'^^^fi  "" 

_'  '  '  T.  J  matters 

tradicted  by  the  party  putting  the  question.^  "  The  test  collateral, 
of  whether  a  fact  inquired  of  in  cross-examination  is  collateral 
is  this,  Would  the  cross-examining  partj'-  be  entitled  to  prove  it 
as  a  part  of  his  case,  tending  to  establish  his  plea  ?  "  *  This  lim- 
itation, however,  only  applies  to  answers  on  cross-examination. 
It  does  not  affect  answers  to  the  examination  in  chief.^ 

§  560.  In  England,  by  the  old  practice,  in  cases  of  conflict. 


loss 
cannot  be 
contra- 


43  Penn.  St.  9;  Cheeck  v.  Wheatly,  11 
Humph.  556  ;  Hall  v.  Simmons,  24 
Tex.  227. 

^  Appleton,  C.  J.,  State  v.  Kings- 
bury, 58  Me.  241. 

2  Nute  V.  Nate,  41  N.  H.  60;  People 
V.  Jackson,  3  Parker  C.  R.  590;  Gregg 
V.  Jamison,  55  Penn.  St.  468  ;  Ray  v. 
Bell,  24  111.  444;  State  v.  Ostrander, 
18  Iowa,  435;  though  see  McVey  v. 
Blair,  7  Ind.  590. 

8  Spenceley  v.  De  Willott,  7  East, 
108;  R.  V.  Watson,  2  Stark.  R.  149; 
Baker  v.  Baker,  3  Sw.  &  Tr.  213; 
Tennant  v.  Hamilton,  7  CI.  &  F.  122; 
U.  S.  V.  Dickinson,  2  McLean,  325  ; 
U.  S.  V.  White,  5  Cranch  C.  C.  38  ; 
Ware  v.  Ware,  8  Me.  42  ;  State  v. 
Kingsbury,  58  Me.  239;  State  v.  Reed, 
60  Me.  550  ;  State  v.  Benner,  64  Me. 
267;  Tibbetts  v.  Flanders,  18  N.  II. 
284;  Seavy  v.  Dearborn,  19  N.  II. 
351  ;  State  v.  Thibcau,  30  V^t.  100  ; 
Com.  V.  Buzzell,  16  Pick.  153  ;  Com. 
V.  Farrar,  10  Gray,  6;  Davis  v.  Keyes, 
112  Mass.  436;  Kaler  r.  Ins.  Co.  120 
Mass.    333;    Winton    t'.    Meeker,    25 


Conn.  456 ;  Carpenter  r.  Ward,  20 
N.  Y.  243;  Gandolfo  v.  Appleton,  40 
N.  y.  533  ;  Green  v.'  Rice,  33  N.  Y. 
Sup.  Ct.  292;  Rosenweig  v.  People,  63 
Barb.  634 ;  Grilfith  v.  Eshelman,  4 
Watts,  51  ;  Schenley  r.  Com.  36  Penn. 
St.  29  ;  Mclntyre  v.  Young,  6  Blackf. 
496  ;  Foglemaa  v.  State,  32  Ind.  145  ; 
Cokely  V.  State,  4  Iowa,  477  ;  Patten 
V.  People,  18  Mich.  314  ;  State  v. 
Staley,  14  Minn.  105  ;  State  v.  Pat- 
terson, 2  Ired.  346;  State  i;.  Fully.  63 
N.  C.  8  ;  Clark  r.  Clark,  65  N.  C. 
655;  State  v.  Elliott,  68  N.  C.  124; 
Wilkinson  v.  Davis,  34  Ga.  549  ; 
Dozier  v.  Joyce,  8  Port.  303  ;  Rosen- 
baum  i".  State,  33  Ala.  354  ;  People  v. 
Devine,  44  Cal.  452. 

*  Sharswood,  J.,  Ilildeburn  r.  Cur- 
ran,  G5  Penn.  St.  63  ;  and  see  Wood- 
ward V.  Easton,  118  Mass.  403.  As 
to  how  far  such  contradiction  may  be 
extended  at  the  discretion  of  the  court, 
see  Powers  r.  Leach,  26  Vt.  270. 

6  State  V.  Sargent,  32  Maine,  429  ; 
Hastings  v.  Livermore,  15  Gray,  10  ; 
Whitney  v.  Boston,  98  Mass.  312. 

635 


§  561.]  THE  LAW   OF  EVIDENCE.  [BOOK  II. 

the  witnesses  could  be  confronted  ;  and  on  one  remarkable  oc- 
Byold  casion  no  less  than  fo«r  witnesses  were  for  this  pur- 
conmcting  P^^®  placed  together  in  the  box.^  "  This  practice,  wliich 
^^umT^  is  still  recognized  in  ecclesiastical  courts  and  courts 
confronted,  of  probate,  and  which  prevails  largely  in  county  courts, 
where  it  is  often  productive  of  highly  useful  results,  has,  for 
some  unexplained  reason,  grown  into  comparative  disuse  at  nisi 
prius.  This  is  to  be  regretted  ;  for  the  practice  certainly  affords 
an  excellent  opportunity  of  contrasting  the  demeanor  of  the  oppos- 
ing witnesses,  and  of  thus  testing  the  credit  due  to  each ;  while 
it  also  furnishes  the  means  of  explaining  away  an  apparent  con- 
tradiction, or  of  rectifying  a  mistake,  where  both  witnesses  have 
intended  to  state  nothing  but  the  truth."  ^ 

§  561.  A  witness's  answers  as  to  motives  are  not  open  to  the 
Witness's  criticisui  that  has  been  applied  to  his  answers  as  to 
to  moTiv^e^s  pi'io'^  misconduct.  The  latter  open  one  or  more  dis- 
may be  tinct  issues,  and  prejudice  the  witness,  by  putting  him, 
dieted.  without  notice,  on  trial  for  other  acts  than  that  specif- 
ically in  litigation.  The  former  relate  exclusively  to  the  imme- 
diate issue,  and  concern  topics  as  to  which  the  party  has  notice 
to  prepare.  Hence  it  has  been  held  that  a  witness  may  be  asked 
whether  he  has  not  a  strong  bias  or  interest  in  the  case,  and  if 

^  White   V.    Smith,  Arm.  M.  &  O.  former  conversation  he  spoke  of  a  part- 

171,   per  Brady,    C.     B.  ;  Casson    v.  nership  from  which  one  name  was  soon 

O'Brien,  Ibid.  263,  per  Pennefather,  afterward  withdrawn,  leaving  him  now 

C.  J.;    Taylor's  Ev.  §  1332.  to  speak  of  the  latter  firm  thus  weak- 

2  Ibid.  Mr.  Justice  Cowen,  in  his  ened  by  the  withdrawal.  In  regard 
note  to  Ph.  Ev.  vol.  ii.  p.  774,  illustrates  to  the  credit  of  the  first  firm,  he  had, 
the  utility  of  the  practice  by  a  case  *' in  in  truth,  been  fully  informed  by  let- 
which  a  highly  respectable  witness,  ters.  With  respect  to  the  last,  he  had 
sought  to  be  impeached  through  an  no  information.  The  sound  in  the 
out-of-door  conversation,  by  another  title  of  the  firm  was  so  nearly  alike 
witness,  who  seemed  very  willing  to  that  the  ear  would  easily  confound 
bring  him  into  contradiction,  upon  them  ;  and  had  it  not  been  for  the 
both  being  placed  upon  the  stand,  colloquium  thus  brought  on,  an  ap- 
furnished  such  a  distinction  to  the  parent  contradiction  would,  doubtless, 
latter  as  corrected  his  memory,  and  have,  been  kept  on  foot,  for  various 
led  him  in  half  a  minute  to  acknowl-  purposes,  through  a  long  trial.  It  in- 
edge  that  he  was  wrong.  The  differ-  volved  an  inquiry  into  a  credit,  which 
ence  lay  only  in  one  word.  The  first  had  been  given  to  another  on  the 
witness  had  now  sworn  that  he  did  not  fraudulent  representations  of  the  de- 
rely  on  a  certain  firm  as  being  in  good  fendaut."  Taylor's  Ev.  §  1332. 
credit.      It  turned    out  that  in    his 

536 


CHAP.  VIll.] 


WITNESSES  :   HOW  IMPEACHED. 


[§  562. 


he  denies  such  interest  or  bias,  that  he  may  be  contradicted  by 
evidence  of  his  own  statements,  or  of  other  implicatory  acts. 
The  same  rule  applies  to  questions  as  to  quarrels  between  the 
witness  and  the  party  against  whom  he  is  called. ^  It  is  true 
that  we  have  cases  disputing  this  conclusion  ;  ^  but  it  is  hard  to 
see  how  evidence  which  goes  to  the  root  of  a  witness's  impartiality 
can  be  regarded  as  collateral  to  the  issue.^ 

§  562.  It  is  competent,  in  order  to  discredit  a  witness,  to  offer 
evidence  attacking  his  character  for  truth  and  veracity.*   Witness's 
Particular  independent  facts,  though   bearing  on  the   for^Jrut^ 
question  of  veracity,  cannot,  however,  be  put  in  evi-   f"'\^^ay^^g 
dence  for  this  purpose.^     Thus,  evidence  has  been  re-   attacked, 
fused  of  declarations  of  a  witness  of  his  own  want  of  religion  ;  ^ 
though  it  is  held  that  it  may  be  proved  that  a  witness  had  de- 


1  R.  V.  Yervin,  2  Camp.  638  ;  R.  v. 
Martin,  6  C.  &  P.  562  ;  Thomas  v. 
David,  7  C.  &  P.  350  ;  Queen's  case, 
2  B.  &  B.  311  ;  Atty.  Gen.  v.  Hitch- 
cock, 1  Exch.  R.  102;  Swett  v.  Shum- 
■way,  102  Mass.  365  ;  Davis  v.  Keyes, 
112  Mass.  436  ;  Beardsley  v.  Wild- 
man,  41  Conn.  515  ;  People  v.  Austin, 
1  Parker  C.  R.  154;  Gaines  v.  Com. 
14  Wright  (Penn.)  327  ;  Lucas  v. 
Flinn,  35  Iowa,  9  ;  Geary  v.  People, 
22  Mich.  220. 

2  Harrison  v.  Gordon,  2  Lew.  C.  C. 
150  ;  R.  V.  Holmes,  L.  R.  1  C.  C.  R. 
237  ;  Harris  v.  Tippett,  2  Camp.  637  ; 
State  t;.  Patterson,  2  Ired.  346.  As  to 
the  materiality  of  bias  and  motive,  see 
supra,  §  408. 

8  Supra,  §§  408,  544,  545. 

4  R.  V.  Rockwood,  13  How.  St.  Tr. 
210;  Carlos  v.  Brooks,  10  Ves.  4D; 
Mawson  v.  Hartsink,  4  Esp.  103  ;  R. 
V.  Brown,  L.  R.  1  C.  C.  70  ;  U.  S.  v. 
Vansickle,  2  McLean,  219  ;  U.  S.  v. 
White,  5  Cranch  C.  C.  38;  Ordway  v. 
Haynes,  50  N.  H.  159.  As  to  mode  of 
proving  character,  supra,  §§  48-9,  56. 
See  Hamilton  v.  People,  29  IMich.  1  73. 

^  Supra,  §  49,  50;  R.  v.  Rockwood, 
13  How.  St.  Tr.  210;  Carlos  v.  Brooks, 
10    Ves.  49  ;  Penny    v.  Watts,  2  De 


Gex  &  Sm.  501 ;  U.  S.  v.  Masters,  4 
Cranch  C.  C.  169;  U.  S.  r.  Vansickle, 
2  McLean,  219  ;  Phillips  i-.  Kingfield, 
19  Me.  375;  Shaw  v.  Emery,  42  Me. 
59;  State  v.  Bruce,  24  Me.  71;  Spears 
V.  Forrest,  15  Vt.  435 ;  Crane  v. 
Thayer,  18  Vt.  162;  Com.  v.  Churchill, 
11  Mete.  (Mass.)  538;  Root  v.  Ham- 
ilton, 105  Mass.  22;  Bakeman  v. 
Rose,  18  Wend.  146;  Wehrkamp  v. 
Willet,  4  Abb.  (N.  Y.)  App.  548; 
Foster  v.  Ncwbrough,  58  N.  Y.  481; 
Southworth  v.  Bennett,  58  N.  Y.  659  ; 
Crichton  v.  People,  6  Parker  C.  R. 
363;  Wike  v.  Lightner,  11  Serg.  &  R. 
198  ;  Rixey  r.  Bayse,  4  Leigh,  330; 
Uhl  V.  Com.  6  Grat.  706  ;  Barton  i-. 
]\Iorphes,  2  Dev.  520;  Clark  i;.  Bailey, 
2  Strobh.  Eq.  143 ;  Weathers  v. 
Barksdale,  30  Ga.  888;  Nugent  v. 
State,  18  Ala.  521  ;  Craig  v.  State,  5 
Oh.  St.  605;  Frye  v.  Bank,  11  III. 
367;  Crabtrce  r.'lvile,  21  111.  ISO; 
AValker  v.  State,  6  Blackf.  1  ;  Long  v. 
Morrison,  14  Ind.  595  ;  Ketcliiiignian 
r.  State,  6  Wise.  426  ;  Rudsdill  v. 
Slingerland,  18  Minn.  380  ;  Thurman 
r.  Virgin,  18  B.  Mon.  7.S5:  Taylor  v. 
Com.  3  Bush,  508;  Newman  r.  Mackin, 
21  Miss.  383. 

0  Halle V  v.  Webster,  21  Mc.  461. 

537 


§  563.] 


THE   LAW    OF   EVIDENCE. 


[book  II. 


clared  that  he  would  swear  to  anything.^  A  fortiori,  is  general 
character  for  "badness,"  or  "infamy,"  inadmissible.^  Thus,  it 
has  been  held  inadmissible,  in  order  to  attack  veracity,  to  prove 
the  bad  character  of  a  female  witness  for  chastity,  or  to  show 
that  she  is  a  prostitute  ;  ^  or  to  prove  habits  of  intemperance, 
which  do  not  affect  the  perceptive  or  narrative  powers.^ 

§  563.  The  impeaching  witness,  it  has  been  frequently  ruled, 
must  be  asked,  as  a  preliminary  question,  as  to  the 
impeached  witness's  general  character  or  reputation  for 
truth  and  veracity  in  the  community  in  which  he  has 
lived.^  It  is  inadmissible  to  ask  what  character  the 
impeached  witness  had  in  a  neighborhood  in  which  he  was  a  non- 
resident ;  ^  or  at  a  period  long  prior  to  that  of  the  trial. ^     But 


Questions 
to  be  con- 
fined to 
reputation 
for  verac- 
ity. 


^  Newhal  v.  Wadhams,  1  Root, 
504  ;  Anonymous,  1  Hill  (S.  C.)  25. 

2  State  V.  Bruce,  11  Shepl.  71  ; 
Com.  V.  Churchill,  11  Mete.  538;  State 
V.  Sater,  8  Iowa,  420;  Kilburn  v.  Mul- 
ler,  22  Iowa,  498  ;  State  v.  O'Neil, 
4  Ired.  88  ;  People  v.  Yslas,  27  Cal. 
630  ;  though  see  Carpenter  v.  Wall, 
11  Ad.  &  El.  803;  Sharp  v.  Scog- 
ing,  Holt  N.  P.  R.  541  ;  Johnson 
V.  People,  3  Hill  (N.  Y.),  178;  Wright 
V.  Paige,  36  Barb.  143  ;  State  v.  Bos- 
well,  2  Dev.  L.  209  ;  State  v.  Shields, 
13  Mo.  236;  State  v.  Breeden,  58 
Mo.  507  ;  Hume  v.  Scott,  3  A.  K. 
Marsh.  261;  Gilliam  v.  State,  1  Head, 
38. 

3  Wilds  V.  Blanchard,  7  Vt.  141  ; 
Spears  v.  Forrest,  15  Vt.  435  ;  Com. 
V.  Churchill,  11  Mete.  530,  overruling 
Com.  V.  Murphy,  14  Mass.  387;  Jack- 
son V,  Lewis,  13  Johns.  R.  504;  Bake- 
man  v.  Rose,  14  AVend.  105;  Gil- 
christ v.  McKee,  4  Watts,  380  ;  Kil- 
burn V.  Mullen,  22  Iowa,  498;  People 
17.  Yslas,  27  Cal.  630.  See  Indianap- 
olis R.  R.  V.  Anthony,  43  Ind.  183. 

*  Thayer  v.  Boyle,  30  Me.  375; 
Hoitt  V.  Moulton,  21  N.  H.  586.  See 
supra,  §§  48-56. 

^  Teese  v.  Huntingdon,  23  How.  2; 
U.  S.  V.  Vansickle,  2  McLean,  219  ; 

538 


Knode  r.  Williamson,  17  Wall.  586  ; 
State  V.  Randolph,  24  Conn.  363; 
People  V.  Mather,  4  Wend.  229 ;  At- 
wood  V.  Impson,  20  N.J.  Eq.  150  ; 
Bogle  V.  Kreitzer,  46  Penn.  St.  465  ; 
Bucklin  v.  State,  20  Ohio,  18;  French 
V.  Millard,  2  Oh.  St.  44  ;  Crabtree  v. 
Hagenbauch,  25  III.  233  ;  Simmons  v. 
Holster,  13  Minn.  249;  Keator  v. 
People,  32  Mich.  484 ;  Boswell  v. 
Blackman,  12  Ga.  591 ;  Stokes  ;;.  State, 
18  Ga.  17;  Smithwick  v.  Evans,  24  Ga. 
461  ;  Pleasant  r.  State,  15  Ark.  624. 
See  Bates  v.  Barber,  4  Cush.  107  ; 
Com.  V.  Lawler,  12  Allen,  585  ;  Gra- 
ham V.  Chrystal,  2  Abb.  (N.  Y.)  App. 
263. 

^  Boynton  v.  Kellogg,  3  Mass.  192; 
Conkey  v.  People,  5  Parker  C.  R. 
31;  Wike  v.  Lightner,  11  Serg.  &  R. 
198;  Griffin  v.  State,  14  Oh.  St.  55; 
Chance  v.  R.  R.  32  Ind.  472;  Web- 
ber V.  Hanke,  4  Mich.  1 98  ;  Camp- 
bell V.  State,  23  Ala.  44.  See  Sleeper 
V.  Van  ISIiddlesworth,  4  Denio,  431  ; 
Rathbun  v.  Ross,  46  Barb.  127  ; 
Holmes  v.  Stateler,  17  111.453.  See 
supra,  §  49. 

T  State  V.  Howard,  9  N.  H.  485  ; 
Rogers  v.  Lewis,  19  Ind.  405;  Aurora 
V.  Cobb,  21  Ind.  492.  See  Com.  r. 
Billings,    97    Mass.    405  ;    People   v. 


CHAP.  VIII.]  WITNESSES  :    HOW   IMPEACHED.  [§  ,565. 

evidence  of  bad  reputation  for  veracity  four  years  previous  to 
the  trial  is  held  admissible  to  impeach  a  witness  who  had  no 
fixed  domicil,  and  had  been  out  of  the  state  over  a  year  of  the 
time,  and  whose  residence  at  the  place  of  such  reputation  was  as 
long  as  at  any  other.i  A  stranger  sent  into  a  community  to 
learn  the  character  of  a  witness  is  not  competent  to  testify  as  to 
such  character.2 

§  564.  "  Character,"  in  the  sense  in  which  it  is  used  in  the  • 
questions  so  authorized,  is  to  be  viewed  as  convertible  with  repu- 
tation.^ It  is  true  that  "  in  many  cases,  it  has  been  said,  the 
regular  mode  of  examining  is  to  inquire  whether  the  witness 
knows  the  general  character  of  the  person  whom  it  is  intended 
to  impeach ;  but  in  all  such  cases  the  word  '  character  '  is  used  as 
synonymous  with  reputation.  What  is  wanted  is  the  common 
opinion,  that  in  which  there  is  general  concurrence ;  in  other 
words,  general  reputation  or  character  attributed.  That  is  pre- 
sumed to  be  indicative  of  actual  character,  and  hence  it  is  re- 
garded as  of  importance  when  the  credibility  of  a  witness  is  in 
question."^  But  while  particular  facts  are  inadmissible  on  this 
issue,  general  reputation  only  being  the  question ;  on  cross-ex- 
amination, as  we  will  see,  a  witness  attacking  character  may  be 
tested  as  to  details.^ 

§  565.  Unless  the  court  is  satisfied  that  the  impeaching  wit- 
ness has  adequate  means  of  knowledge,  he  will  not  be  admitted  ;  ^ 
though  this  is  in  Massachusetts  left  to  the  discretion  of  the  court. '^ 
It  is  generally  sufficient  if  the  witness  says  he  can  speak  of  the 
general  sense  of  such  of  the  community  as  are  acquainted  with 
the  impeached  witness,  or  among  whom  the  impeached  witness 
moves. ^  Supposing  the  impeaching  witness  be  shown  to  be  corn- 
Abbott,  19  Wend.  192,  as  indicating  316;  Kelley  v.  Proctor,  41  N.  II.  139; 
limits  as  to  time.  State  v.  Parks,  3  Ired.  L.  I'GG  ;  State 

1  Keator  v.  People,  32  Mich.  481.         v.  Spt-ight,  69  N.  C.  72. 

2  Reid  t;.  Reid,  17  N.  J.  Eq.  101.  ^  Wcnherbco  v.   Norris,    103  Mass. 
8  Supra,  §  49.                                            5G5.      Infra,  §  56J. 

■*  Strong.  J.,  Knode   v.  Williamson,  ^  KimiiR-l  r.  Kimmcl,  3    Serg.  &  R. 

17  Wall.  588.    See  other  cases  supra,  336;    Cr.ibtree   r.    Kile,    21    111.  280; 

§49.  IIa<ljo  V.  Gooden,  13    Ala.  718;   Dave 

'^  Infra,    §    565.     See,  particularly,  v.   State,    22   Ala.  23  ;  Elam    i:  State, 

supra,  §  49,  to  the  position   that  dis-  25  Ala.  53 ;  Ward   i'.   State,   28  Ala. 

paraging  facts  cannot  be  introduced.  53. 

«  King  V.  Ruckman,  20  N.  J.  Ivj.  539 


§  565.] 


TIIK    LAW    OF   EVIDENCE. 


[rook  II. 


petent  to  express  an  opinion,  he  may  then  be  asked  -whether  he 
would  believe  the  impeached  witness  on  his  oath.^     But  it  has 


1  R.  V.  Brown,  10  Cox  C.  C.  453; 
S.  C.  L.  R.  1  C.  C.  70;  Mawson 
V.  Hartsink,  4  Esp.  103 ;  Titus  v. 
Ash,  4  Foster,  319  ;  Stevens  v.  Irwin, 
12  Cal.  306;  People  v.  Mather,  4 
Wendell,  457  ;  People  v.  Rector,  19 
'  Wendell,  5G9  ;  Bogle  v.  Kreitzer,  46 
Penn.  St.  465;  Lyman  v.  Philadelphia, 
56  Penn.  St.  438;  Knight  v.  House,  29 
Md.  194;  Eason  v.  Chapman,  21  HI. 
33;  Hamilton  v.  People,  29  Mich.  185; 
Keator  v.  People,  32  Mich.  484;  Wil- 
son V.  State,  3  Wise.  798 ;  Stevens  v. 
Irwin,  12  Cal.  306;  Stokes  v.  State, 
18  Ga.  17;  McCutchen  v.  McCutch- 
en,   9  Port.    650;    Mobley  v.   Hamit, 

1  A.  K.  Marsh.  590 ;  Henderson  v. 
Hayne,  2  Mete.  (Ky.)  342;  Ford  i;. 
Ford,  7  Humph.  92;  Hooper  v.  Moore, 
3  Jones  (N.  C.)  L.  428.  See,  as  ques- 
tioning this  course,  Phillips  v.  King- 
field,  1  Applet.  375;  Gass  v.  Stinson, 

2  Sumn.  610 ;  Kimmel  v.  Kimmel,  3 
S.  &  R.  336  ;  Wike  v.  Lightner,  11  S. 
&  R.  198  ;  People  v.  Tyler,  35  Cal.  553. 

The  right  to  put  such  a  question  is 
disputed  by  Mr.  Greenleaf  ;  but  is 
vindicated  as  follows  by  a  learned 
Michigan  judge :  — 

"  The  purpose  of  any  inquiry  into 
the  character  of  a  witness  is  to  ena- 
ble the  jury  to  determine  whether  he 
is  to  be  believed  on  oath.  Evidence 
of  his  reputation  would  be  irrelevant 
for  any  other  purpose.  And  a  repu- 
tation which  would  not  affect  a  wit- 
ness so  far  as  to  touch  his  credibility 
under  oath,  could  have  no  influence. 
The  English  text-books  and  authori- 
ties have  always,  and  without  excep- 
tion, required  the  testimony  to  be 
given  directly  on  this  issue.  The 
questions  put  to  the  impeaching  and 
supporting  witnesses  relate,  first,  to 
their  knowledge  of  the  reputation  for 

540 


truth  and  veracity  of  the  assailed  wit- 
ness ;  and,  second,  whether,  from  that 
reputation,  they  would  believe  him  un- 
der oath A  very  recent 

decision  is  found  in  Queen  v.  Brown 
&  Hedley,  L.  R.  1  C.  C.  R.  70.  The 
reason  given  is  that,  unless  the  im- 
peaching witness  is  held  to  showing 
the  extent  to  which  an  evil  reputation 
has  affected  a  person's  credit,  the  jury 
cannot  accurately  tell  what  the  wit- 
ness means  to  express  by  stating  that 
such  reputation  is  good  or  bad,  and 
can  have  no  guide  in  weighing  his  tes- 
timony. And  since  it  has  become  set- 
tled that  they  are  not  bound  to  disre- 
gard a  witness  entirely,  even  if  he  fal- 
sifies in  some  matters,  it  becomes  still 
more  important  to  know  the  extent  to 
which  the  opinion  in  his  neighborhood 
has  touched  him.  It  has  also  been 
commonly  observed  that  impeaching 
questions  as  to  character  are  often 
misunderstood,  and  witnesses,  in  spite 
of  caution,  base  their  answer  on  bad 
character  generally,  which  may  or  may 
not  be  of  such  nature  as  to  impair  con- 
fidence in  testimony.  When  the  ques- 
tion of  credit  under  oath  is  distinctly 
presented,  the  answers  will  be  more 
cautious. 

"Until  ISIr.  Greenleaf  allowed  a 
statement  to  creep  into  his  work  on 
Evidence,  to  the  effect  that  the  Amer- 
ican authorities  disfavored  the  Eng- 
lish rule,  it  was  never  very  seriously 
questioned.  See  1  Greenl.  Ev.  §  461. 
It  is  a  little  remarkable  that  if  the 
cases  referred  to  sustain  this  idea,  not 
one  contained  a  decision  upon  the 
question,  and  only  one  contained  more 
than  a  passing  dictum  not  in  any  way 
called  for.  Phillips  v.  Kingfield,  1 
Appleton's  (Me.)  R.  375.  The  au- 
thorities referred  to  in  that  case  con- 


CHAP.  VIII.] 


WITNESSES:    HOW   IMPEACHED. 


[§  565. 


been   held   not   essential,   in   order   to   throw  discredit  on    the 
impeached  witness,  that  the  impeaching  witness  should  state 


tained  no  such  decision,  and  the  court, 
after  reasoning  out  the  matter  some- 
what cai'efully,  declared  the  question 
was  not  presented  by  the  record  for 
decision.  The  American  editors  of 
Phillipps  and  Starkie  do  not  appear  to 
have  discovered  any  such  conflict,  and 
do  not  allude  to  it.  They  do,  how- 
ever, as  many  decisions  do,  refer  to 
the  kind  of  reputation  which  should  be 
shown,  and  whether  of  veracity  or  of 
other  qualities.  In  Webber  v.  Hanke, 
4  Mich.  R.  198,  no  question  came  up 
on  the  record  except  as  to  the  species 
of  reputation,  and  the  neighborhood 
and  the  time  of  its  existence;  and  what 
was  said  further  was  not  in  the  case, 
and  cannot  properly  dispose  of  the 
matter.  The  objection  alleged  to  such 
an  answer  by  a  witness  is,  that  it 
enables  the  witness  to  substitute  his 
opinion  for  that  of  the  jury.  But  this 
is  a  fallacious  objection.  The  jury,  if 
they  do  not  act  from  personal  knowl- 
edge, cannot  understand  the  matter 
at  all  without  knowing  the  witness's 
opinion,  and  the  ground  on  which  it 
is  based.  It  is  the  same  sort  of  di(li- 
culty  which  arises  in  regard  to  insan- 
ity, to  disposition,  or  temper,  to  dis- 
tances and  velocities,  and  many  other 
subjects  where  a  Avitness  is  only  re- 
quired to  show  his  means  of  informa- 
tion, and  then  state  his  conclusions, 
or  belief  based  on  those  means.  If  six 
witnesses  are  merely  allowed  to  state 
that  a  man's  reputation  is  bad,  and  as 
many  say  it  is  good,  without  being 
questioned  further,  the  jury  cannot 
be  said  to  know  much  about  it.  Nor 
would  any  cross-examination  be  worth 
much  unless  it  aided  them  in  finding 
out  just  how  far  each  witness  regarded 
it  as  tainted. 

"  So   far  as  the  reports   show,   the 


American  decisions,  instead  of  shak- 
ing the  English  doctrine,  are  very  de- 
cidedly in  favor  of  it,  and  have  so  held 
upon  careful  and  repeated  examina- 
tion, and  we  have  not  been  referred 
to,  nor  have  we  found  any  considera- 
ble conflict.  See,  in  New  York,  Peo- 
ple V.  Mather,  4  Wend.  R.  220  (which 
was  the  view  of  Judge  Oakley,  no 
opinion  being  given  by  his  associate) ; 
People  V.  Rector,  19  Wend.  R.  569; 
People  V.  Davis,  21  Wend.  309;  in 
New  Hampshire,  Titus  v.  Ash,  4  Fos- 
ter, 319;  in  Pennsylvania,  Bogle's 
Ex'rs  u.  Kreitzer,  46  Penn.  St.  465: 
Lyman  v.  Philadelphia,  56  Penn.  St. 
488;  in  INIaryland,  Knight  v.  House, 
29  Md.  194;  in  California,  Stevens 
V.  Irwin,  12  Cal.  306;  People  v.  Ty- 
ler, 35  Cal.  553;  in  Illinois,  Eason  v. 
Chapman,  21  111.  33  ;  in  Wisconsin, 
Wilson  V.  State,  3  Wise.  798;  in  Geor- 
gia, Stokes  i\  State,  18  Ga.  17;  Tay- 
lor u.  Smith,  16  Ga.  7;  in  Tennessee, 
Ford  V.  Ford,  7  Humph.  92;  in  Ala- 
bama, INIcCutchen  v.  jMcCutchen,  9 
Port.  650;  in  Kentucky,  Mobley  i'. 
Ilamit,  1  A.  K.  Marsh.  590;  also  in 
Judge  McLean's  Circuit,  in  \].  S.  r. 
Yansickle,  2  McLean,  219. 

"  Mr.  Greenleaf  himself  intimates 
that  it  might  be  a  proper  inquiry  on 
crass-examinallon.  We  think  the  in- 
quiry proper,  when  properly  confined 
and  guarded,  and  not  left  to  depend 
on  any  basis  but  the  reputation  for 
truth  and  veracity.  And  we  also  think 
that  the  cross-examination  on  im- 
peaching or  sustaining  testimony 
sliould  be  allowed  to  be  full  and 
searching."  Campbell,  J.,  Hamilton 
V.  People,  29  Mich.  R.  185. 

The  ^lassachusctts  practice  in  this 
respect  may  be  thus  stated :  "  The 
ruling  of  the  presiding  judge,  that  each 

o41 


§  ^05.] 


THE   LAW   OF   EVIDENCE. 


[book  n. 


that  he  would  not  believe  the  impeached  witness  on  his  oath.^ 
The  impeaching  witness,  who  has  sworn  as  to  the  bad  character 
of  the  impeached  witness  for  truth,  may  be  asked  on  cross- 
examination  as  to  who  he  had  heard  thus  disparage  the  im- 
peached witness ;  ^  and  as  to  what  other  grounds  he  had  for  his 


of  the  witnesses  called  to  impeach  the 
plaintiff  should  be  first  asked  the  ques- 
tion, 'Do  you  know  the  reputation  of 
the  plaintiff  for  truth  and  veracity  ?  ' 
is  not  the  subject  of  exceptions.  The 
practice  upon  this  subject  differs  in 
different  courts.  In  tliis  state,  no 
practice  is  established  as  a  rule  of  law, 
but  it  is  within  the  discretion  of  the 
presiding  judge  to  require  the  prelim- 
inary question  above  stated  to  be 
asked  of  each  witness,  if  he  shall 
deem  that  the  interests  of  justice  re- 
quire it.  The  same  principle  is  ap- 
plicable to  the  examination  of  wit- 
nesses upon  other  subjects.  It  often 
occurs,  in  the  trial  of  cases,  that  the 
judge  is  called  upon  to  inquire  of  a 
witness  whetlier  he  has  knowledge  of 
the  matter  of  which  he  is  called  to 
testify.  If  it  appears  to  be  doubtful 
whether  the  witness  understands  and 
appreciates  his  duty  to  testify  only  to 
what  he  knows  of  his  own  knowledge; 
or  if,  for  any  reason,  there  is  danger 
that  he  may  testify  to  hearsay;  it  is 
the  right,  and  may  be  the  duty,  of  the 
presiding  judge  to  inquire  of  him 
whether  he  has  knowledge  of  the 
matter  as  to  which  he  is  asked  to 
testify;  and  the  party  calling  the  wit- 
ness would  not  be  thereby  aggrieved, 
and  no  exceptions  would  lie.  So,  in 
the  examination  of  impeaching  wit- 
nesses, if  the  presiding  judge  sees 
that  there  is  danger  that  the  witness, 
in  answer  to  the  usual  question, '  What 
is  his  general  reputation  for  truth  and 
veracity  ?  '  may  give  incompetent  tes- 
timony, either  because  he  fails  to  un- 
derstand  the  exact  character  of   the 

542 


question,  or  for  any  other  reason,  he 
may  require  the  witness  first  to  be 
asked  whether  he  knows  what  that 
reputation  is.  Whether  the  circum- 
stances of  this  case  required  the  pre- 
liminary question  to  be  put,  was  a 
matter  within  the  judicial  discretion 
of  the  presiding  judge,  and  cannot  be 
revised  on  exceptions. 

"  The  case  at  bar  is  clearly  distin- 
guishable from  the  case  of  Bates  v. 
Barber,  4  Cush.  107.  In  that  case, 
the  presiding  judge  directed  that  the 
witnesses  must  be  first  examined  as  to 
their  knowledge  and  means  of  knowl- 
edge of  the  character  of  the  witness 
attempted  to  be  impeached,  and  upon 
such  examination  assumed  the  right 
to  decide  whether  the  witness  offered 
had  sufficient  knowledge  to  qualify 
him  to  testify\  In  this  case,  the  pur- 
pose and  effect  of  the  preliminary 
question  appears  to  have  been  merely 
to  ascertain  whether  the  witness  had 
any  knowledge  of  the  general  reputa- 
tion of  the  impeached  witness,  and  not 
to  inquire  into  the  extent  or  means  of 
such  knowledge.  The  only  witness 
rejected  was  rejected  because  he  did 
not  appear  to  have  any  knowledge; 
not  because  the  amount  of  his  knowl- 
edge was  not  satisfactory  to  the  court." 
Morton,  J.,  Wetherbee  v.  Xorris,  103 
Mass.  566. 

1  People  f.  Tyler,  35  Cal.  353. 

2  Bates  V.  Barber,  4  Cush.  197; 
Weeks  V.  Hull,  19  Conn.  376;  Lower  v. 
Winters,  7  Cow.  263;  People  v.  Annis, 
13  Mich.  511;  State  r.  Perkins,  66  N. 
C.  126.     Infra,  §  5G8. 


CHAP.  VIII.] 


WITNESSES:    now    IMPEACHED. 


[§  566. 


conclusion.^     The  court  may,  at  its  disci'etion,  limit  the  number 
of  impeaching  witnesses  to  be  examined.^ 

§  566,  As  we  have  seen,^  it  is  competent,  ground  being  first 
duly  laid  by  cross-examination,  to  impeach  a  witness  jji^^^  ^ 
by  showing  his  bias.  For  this  purpose  it  is  admissible  ^'^  shown, 
to  prove  near  relationship,  sympathy,  hostilities  as  evidenced  by 
a  quarrel,  and  prejudice  as  to  the  particular  case,  so  far  as  is  ex- 
hibited by  declarations  and  acts.*  When  the  object  is  to  prove 
hostile  declarations  or  acts,  the  witness  must  first  be  cross-exam- 
ined as  to  such  declarations  or  acts,  so  that  he  may  have  an  op- 
portunity for  explanation.^  A  witness  cannot,  it  is  said,  be  asked 
if  he  is  not  prejudiced  against  a  particular  party.  He  must  be 
asked  as  to  particular  facts  or  conditions.^     So  a  witness  may  be 


^  Pierce  i'.  Newton,  13  Gray,  528; 
Titus  V.  Ash,  24  N.  H.  319  ;  Bullard 
V.  Lambert,  40  Ala.  204. 

2  Bunnell  v.  Butler,  23  Conn.  65  ; 
Bissell  V.  Cornell,  24  Wend.  354;  Gray 
V.  St.  John,  35  111.  222  ;  Cox  v.  Pruitt, 
25  Ind.  90. 

8  Supra,  §  408. 

*  Davis  V.  Roby,  64  Me.  430;  Drew 
V.  Wood,  26  N.  H.  363;  Carrv.  Moore, 
41  N.  II.  131;  Hutchinson  v.  Wheeler, 
35  Vt.  330;  Long  v.  Lamkin,  9  Cush. 
361;  Day  u.  Stickney,  14  Allen,  255; 
Svvett  V.  Shuniway,  102  Mass.  365; 
Atwood  V.  Wclton,  7  Conn.  66;  Dag- 
gett V.  Tallraan,  8  Conn.  168;  People 
V.  Rector,  19  Wend.  569;  Howell  v. 
Ashmore,  22  N.  J.  L.  261;  Magehan 
V.  Thompson,  9  Watts  &  S.  54;  Gang- 
were's  Est.  14  Penn.  St.  417  ;  Bat- 
dorff  V.  Bank,  61  Penn.  St.  183  ;  Ray 
V.  Bell,  24  111.  444  ;  First  Nat.  Bk.  v. 
Ilaight,  55  111.  191;  Berseh  v.  State, 
13  Ind.  434;  Conkey  v.  Post,  7  Wise. 
131;  State  r.  Oscar,  7  Jones  (N.  C) 
L.  305;  Bishop  v.  State,  9  Ga.  121; 
Martin  v.  Martin,  25  Ala.  201 ;  Head 
V.  State,  44  Miss.  731;  State  v.  IMont- 
gomery,  28  Mo.  594  ;  Ward  i-.  Valen- 
tine, 7  La.  An.  184  ;  Tardif  v.  Bau- 
doin,  9  La.  An.  127;  Cornelius  r. 
State,   12  Ark.  782. 


5  Day  V.  Stickney,  14  Allen,  255; 
Edwards  v.  Sullivan,  8  Ired.  L. 
302;  McIIugh  i'.  State,  31  Ala.  317; 
though  see  New  Portland  v.  King- 
field,  55  Me.  172;  Martin  v.  Barnes, 
7  Wise.  239.  As  to  the  effect  of  in- 
terest on  credibility,  see  supra,  § 
408  ;  Carver  v.  Louthain,  38  Ind. 
530  ;  Mathilde  i'.  Levy,  24  La.  An. 
421. 

6  Cornelius  v.  State,  12  Ark.  782. 

"  A  witness  may  be  impeached  by 
showing  a  bias  or  prejudice,  or  gross 
misconduct  in  reference  to  the  cause 
in  which  his  testimony  is  given.  Mrs. 
Smith  was  a  witness.  She  was  im- 
peached by  proof  from  her  own  lips 
that  she  knew  nothing  about  the  case 
but  what  her  husband  had  told  her, 
and  that  he  had  told  her  the  story  she 
must  tell,  with  a  caution,  that  she 
must  tell  the  same  story  twice  alike, 
or  she  would  spoil  all.  The  authori- 
ties all  show  that  a  witness  may  be 
thus  impeached.  Chapman  i'.  Collin, 
14  Gray,  454;  Day  i'.  Stickney,  14  Al- 
len, 255;  Swett  v.  Shumway,  102  Mass. 
365;  New  Portland  v.  Kingfield,  55 
Me.  172.  Certainly,  a  statement,  that 
she  knew  nothing  about  the  case  ex- 
cept what  was  told  her,  is  a  contradic- 
tion of  anv  statement  as  to  her  knowl- 

543 


§  567.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


conviction 
may  be 
proved  as 
affecting 
credibility 


impeacliecl  by  proof  that  he  stated,  after  having  testified,  that  he 
had  been  hired  so  to  do.^ 

§  567.  We  have  already  noticed  ^  that  in  most  states  a  con- 
Infamous  viction  of  an  infamous  crime  no  longer  renders  a  per- 
son incompetent  as  a  witness.  The  record  of  convic- 
tion, however,  by  the  law  of  several  jurisdictions,  may 
be  put  in  evidence  in  order  to  impeach  credibility.^ 
Under  the  Massachusetts  General  Statutes  the  conviction  of  any 
crime  may  be  shown  for  this  purpose.*  Such  conviction,  as 
we  have  already  seen,  must  be  proved  by  record  ;  ^  though  it  is 
admissible  to  ask  a  witness  whether  he  has  not  been  in  the  peni- 
tentiary.^ A  verdict  of  guilty,  without  judgment,  is  not  a  "  con- 
viction." '''  But  a  pardon  does  not  preclude  such  conviction  from 
being  put  in  evidence.® 

21  Midi.  561;  Glenn  v.  Clove,  42 
Ind.  62;  Jefferson  R.  R.  v.  Riley,  39 
Ind.  368;  Johnson  v.  State,  48  Ga. 
116. 

4  Com.  V.  Hall,  4  Allen,  305. 

5  Supra,  §§  63,  64,  541;  infra,  § 
991. 

6  Supra,  §  64;  infra,  §  991;  Real  v. 
People,  42  N.  Y.  270,  cited  supra, 
§541. 

''  See  cases  cited  supra,  §  397;  in- 
fra, §  824. 

8  The  authorities  to  this  effect 
are  well  grouped  in  the  following  opin- 
ion :  — 

"  If  the  king  pardon  these  offend- 
ders,  they  are  thereby  rendered  com- 
petent witnesses,  though  their  credit 
is  to  be  still  left  to  the  jury,  for  the 
king's  pardon  takes  away  poenam  et 
cidpam  in  foro  humano  ....  but  yet 
it  makes  not  the  man  always  an  hon- 
est man."  2  Hale  P.  C.  278;  King  v. 
Castlemain,  7  How.  St.  Tr.  1109, 
1110  ;  King  v.  Rookwood,  13  How. 
St.  Tr.  185,  186;  1  Stark.  Ev.  99; 
Peake  Ev.  132;  NcNally  Ev.  232, 
234;  1  Gilbert  Ev.  (by  Lofft,  ed.  of 
1791),  260;  1  Phillipps'  Ev.  (old  ed.) 
29;  1  Gr.  Ev.  §  3  77;  2  Saund.  PI. 
&   Ev.    1275;    1    Arch.   Crim.    Pr.    & 


edge."  Appleton,  C.  J.,  Davis  v. 
Roby,  64  Me.  430. 

^  McGinnis  v.  Grant,  42  Conn.  77. 

"  To  show  bias  on  behalf  of  the  Avit- 
ness  was  the  right  of  the  defendant,  if 
he  could.  In  Cameron  v.  Montgomery, 
13  S.  &  R.  128,  it  was  held  that  the 
party  against  whom  a  witness  has  tes- 
tified, may  show  anything  which  might 
in  the  slightest  degree  affect  his  cred- 
it, and  the  judgment  in  that  case  was 
reversed,  because  the  court  below  re- 
fused to  allow  the  witness  to  be  asked, 
'whether  the  plaintiff  did  not  buy 
(the  witness's)  property  at  his  (the 
witness's)  instance  ?  ' '  It  was  a  circum- 
stance,' said  Tilghraan,  C.  J.,  '  which 
might  show  that  the  witness  was  under 
obligation  to  him,  and  this  might  have 
had  some  effect  on  his  evidence,  by 
exhibiting  a  bias.'  We  cited  and  ap- 
proved this  rule  in  Ott  v.  Heighton,  6 
Casey,  451;  and  reversed  in  that  case 
because  it  had  been  disregarded  on  the 
trial  below."  Thompson,  C.  J.,  Bat- 
dor  ff  i\  Bank,  61  Penn.  St.  183. 

^  Supra,  §  39  7. 

8  Com.  V.  Knapp,  9  Pick.  49;  Com. 
V.  Gorham,  99  Mass.  420;  Real,  in  re, 
55  Barb.  186;  Donahue  v.  People,  56 
N.  J.  208.     See  Dickinson  v.  Dustin, 

544 


CHAP.  VHP.] 


WITNESSES. 


[§  568. 


XII.   ATTACKING  AND   SUSTAINING  IMPEACHING  WITNESS. 

§  568.  The  character  of  an  impeachhig  witness  for  truth  and 
veracity  may  be  itself  attacked,^  and  may  be  sustained    , 

-T  fo.mi       •  1-  •  Impeach- 

by  countervailmg  proof  .^  ,  The  impeaching  witness  s  op-    ing  witness 

portunities  of  observation,  or  prejudice,  may  be  assailed    tacked  and 

2  and  he  may  be  required,  as  we   ®"®'^'°^  • 


on  cross-examination 


PI.  155;  1  Arch.  N.  P.  29;  Bac.  Abr. 
Pardon  (H.) ;  3  Wooddeson,  Lectures 
on  Laws  of  Eng.  284;  Wharton  Cr. 
L.  (6th  ed.)  §  765;  1  Bishop  Cr. 
L.  §  763;  2  Hargrave  Juridical  Argu- 
ments, 221,  233,  2C0,  267;  2  Russell 
on  Cr.  975,  note  ;  Roscoe  Cr.  Ev.  137, 
note  ;  2  Am.  L.  Reg.  N.  S.  488;  U. 
S.  V.  Jones,  2  Wheeler  Cr.  Cases, 
451;  Baum  v.  Clause,  5  Hill,  196; 
Carpenter  v.  Nixon,  5  Hill,  260;  New- 
comb  V.  Griswold,  24  N.  Y.  300  ; 
Gardner  v.  Bartholomew,  40  Barb. 
325;  Com.  v.  Green,  17  Mass.  515, 
550.  551;  Com.  v.  Rogers  (Paniph. 
Rep.),  39,  148,  179,  180,  231,  249, 
256,  271;  Hoffman  v.  Coster,  2  Whar. 
453,  462;  Howser  v.  Com.  51  Penn. 
St.  332,  340;  Anglea  v.  Com.  10 
Grant,  696,  698,  699,  703,  704;  2 
Hume  Cr.  L.  344  ;  Glassford  Ev. 
413. 

"  A  person  convicted  of  an  offence 
known  in  law  as  infamous,  is  incapac- 
itated to  be  a  witness,  because,  when 
his  guilt  is  established  by  conviction, 
his  general  character  for  truth  is  shown 
to  be  so  bad  that  his  testimony  would 
be  useless  or  dangerous.  1  Gr.  Ev. 
§  372  ;  1  Stark.  Ev.  94.  That  is 
the  theory  of  the  common  law.  The 
conviction  is  an  impeachment  and  con- 
demnation of  his  general  character 
for  truth.  A  pardon  is  not  presumed 
to  be  granted  on  the  ground  of  inno- 
cence or  total  reformation.  Cook  v. 
Middlesex,  2  Dutcher,  326,  331,  333; 
4  Bl.  Com.  397,  400;  3  Inst.  233,  238; 
2  Hawk.  P.  C.  ch.  37,  §  8  ;  Com.  v. 
Halloway,  44  Penn.  210.     It  removes 

VOL.  I.  35 


the  disability,  but  docs  not  change  the 
common  law  principle  that  the  convic- 
tion of  an  infamous  offence  is  evidence 
of  bad  character  for  truth.  Tlie  gen- 
eral character  of  a  person  for  truth, 
bad  enough  to  destroy  his  competency 
as  a  witness,  must  be  bad  enough  to 
affect  his  credibility  when  his  compe- 
tency is  restored  by  the  executive  or 
legislative  branch  of  the  government. 

"  If  the  party  against  whom  an  in- 
famous person  is  offered  as  a  witness 
had  the  election  of  using  the  convic- 
tion as  a  ground  of  exclusion,  or  of  an 
attack  upon  the  credit  of  the  witness, 
the  testimony  of  the  witness  might  be 
warped  by  the  fear  of  impeachment 
and  the  hope  of  avoiding  it ;  and  that 
may  be  a  suflicient  reason  for  not  al- 
lowing such  election. 

"  When  the  character  of  a  par- 
doned witness  is  impeached  by  the 
record  of  his  conviction,  it  would 
seem  that  his  character  may  be  sus- 
tained by  appropriate  evidence."  Doe, 
J.,  Curtis  V.  Cochran,  50  N.  H.  244. 

^  Long  V.  Lamkin,  9  Cush.  361  ; 
Starks  i;.  People,  5  Denio,  106;  State 
V.  Brant,  14  Iowa,  180;  State  ». 
Moore,  25  Iowa,  128;  State  r.  Cherry, 
63  N.  C.  493. 

2  Lemons  v.  State,  4  W.  Va.  755. 

8  Mawson  v.  Ilartsink,  4  Ksp.  103  j 
Phillips  I'.  Kingfield,  1  Apj)U'ton,  375  ; 
Long  V.  Lamkin,  9  Cush.  IH'>\  ;  State 
V.  Howard,  9  N.  II.  48.^;  Weeks  v. 
Hull,  19  Conn.  376;  Stewart  v.  Peo- 
ple, 23  Mich.  63  ;  Arnold  v.  Xyc.  23 
Mich.  286  ;  Durham  v.  Sute,  45  Ga. 
516. 

545 


§  569.] 


THE  LAW   OF   EVIDENCE. 


[book  II. 


have  seen,^  to  specify  the  persons  who  have  spoken  disparagingly 
of  the  impeached  witness.^ 

XIII.  SUSTAINING  IMPEACHED  WITNESS. 
§  569.  When  a  witness's  character  for  truth  and  veracity  has 
Impeached  been  impeached,  the  party  calling  him  may  sustain  him 
may^be  ^Y  Calling  witnesscs  to  show  that  his  character  for  truth 
sustained,  ^nd  veracity  is  good,  and  that  the  sustaining  witnesses 
would  believe  him  on  his  oath.^  The  inquiries,  in  such  case,  may 
range  over  the  witness's  whole  prior  history  in  other  places.* 
Such  rebutting  evidence  is  made  admissible  by  the  mere  fact 
that  the  impeaching  party  examines  an  impeaching  witness  as  to 
the  impeached  witness's  character  for  truth,  though  the  impeach- 
ing witness  answers  favorably.^  It  is  further  held  that  such 
evidence  may  be  admitted  on  particular  discrediting  facts  being 
developed  against  the  witness  on  his  cross-examination,^  espe- 
cially when  he  is  in  the  situation  of  a  stranger,  testifying  to  iso- 
lated facts.''  A  fortiori  is  this  the  case  when  the  opposing  party 
introduces,  as  part  of  his  case,  evidence  directly  reflecting  on  the 
veracity  of  the  witness.^  Thus,  a  witness's  character  is  so  far 
impeached  by  putting  in  evidence  his  conviction  of  a  felony, 
that  evidence  is  admissible  of  his  good  reputation  for  truth.^  A 
mere  conflict  of  testimony,  however,  will  not  justify  introduction 


1  Supra,  §  565. 

2  Weeks  v.  Hull,  19  Conn.  376; 
Lower  V.  Winters,  7  Cow.  263  ;  State 
V.  Perkins,  66  N.  C.  126. 

8  R.  V.  Murphy,  19  How.  St.  Tr. 
724  ;  R.  V.  Clarke,  2  Stark.  R.  241  ; 
Anglesea  v.  Anglesea,  17  How.  St. 
Tr.  1340  ;  Com.  v.  Ingraham,  7  Gray, 
46 ;  Troup  v.  Sherwood,  3  Johns.  Ch. 
558  ;  Frazier  v.  People,  54  Barb.  306; 
People  V.  Davis,  21  Wend.  309  ;  Ly- 
man V.  Philadelphia,  56  Penn.  St. 
488;  Bucklin  v.  State,  20  Oh.  18; 
Lemons  v.  State,  4  W.  Va.  755  ;  Cook 
V.  Hunt,  24  111.  535 ;  Clark  v.  Bond, 
29  Ind.  555  ;  Harris  v.  State,  30  Ind. 
131 ;  Clem  v.  State,  33  Ind.  419  ;  Tay- 
lor V.  Smith,  16  Ga.  7  ;  McCutchen 
V.  McCutchen,  9  Port.  350  ;  Hadjo  v. 
Gooden,  13  Ala.  718;  State  v.  Cherry, 
546 


63  N.  C.  493 ;  Glaze  v.  Whitley,  5 
Oregon,  164. 

*  Burrell  v.  State,  18  Tex.  713 ; 
Morss  V.  Palmer,  15  Penn.  St.  51 ; 
Stratton  v.  State,  45  Ind.  468. 

^  Com.  V.  Ingraham,  7  Gray,  46. 

^  See  Harrington  v.  Lincoln,  4 
Gray,  563;  People  v.  Rector,  19  Wend. 
569;  Lewis  v.  State,  35  Ala.  380; 
People  V.  Ah  Fat,  48  Cal.  62. 

T  Merriam  i'.  R.  R.  20  Conn.  354. 
See  Brown  v.  Mooers,  6  Gray,  451. 

8  Prentiss  i;.  Roberts,  49  Me.  127; 
Isler  V.  Dewey,  71  N.  C.  14. 

9  2  Phil.  Ev.  (5th  Am.  ed.)  95  ; 
State  V.  Roe,  12  Vt.  Ill  ;  Paine  v. 
Tilden,  20  "Vt.  554.  See,  however, 
Doe  V.  Harris,  7  C.  &  P.  330;  People 
V.  Amanacus,  50  Cal.  233. 


CHAP.  Vni.]  WITNESSES  :   HOW   SUSTAINED. 


[§  570. 


of  evidence  thus  to  back  up  the  witnesses  thus  conflicting.^  Nor 
can  such  testimony  be  received,  so  it  has  sometimes  been  ruled, 
merely  upon  proof  of  prior  conflicting  statements  of  the  witness.* 
Nor,  after  a  record  of  a  conviction  has  been  introduced  in  order 
to  discredit  a  witness,  is  it  admissible  to  sustain  him  by  evidence 
of  his  innocence  of  the  offence  of  which  he  was  convicted,^  or 
of  general  good  character,  as  distinguished  from  reputation  for 
truth.*  If  it  should  appear  that  he  was  acquitted  on  a  criminal 
trial,  exculpatory  evidence  is,  as  a  rule,  inadmissible.^ 

When  a  witness  has  been  impeached  on  his  cross-examination, 
it  has  been  held  admissible  to  sustain  him  by  letters  to  him 
from  the  adverse  party,  expressive  of  high  esteem.^ 

The  witness  may  be  recalled  to  substantiate  his  own  testi- 
mony.'' 

§  570.  When  a  witness  is  assailed  on  the  ground  that  he  nar- 
rated the  facts   differently  on  former  occasions,  it  is   But  not 
ordinarily  incompetent  to  sustain  him  by  proof  that  on   ^^  p"  oof^f 
other  occasions  his  statements  were  in  harmony  with   g•'J^"^[ '^°"" 
those  made  on  the  trial.^     Thus,  the  declarations  of  a   statemenn. 


1  Durham  v.  Beaumont,  1  Camp. 
207  ;  Leonori  v.  Bishop,  4  Duer,  420  ; 
Starks  v.  People,  5  Denio,  106  ;  Rog- 
ers V.  Moore,  10  Conn.  13;  Braddee 
V.  Brownfield,  9  Watts,  124;  Wcrtz  v. 
May,  21  Penn.  St.  274;  Vernon  v. 
Tucker,  30  Md.  456  ;  Pruitt  v.  Cox, 
21  Ind.  15  ;  Johnson  v.  State,  21  Ind. 
329.  See,  however,  People  v.  Schweit- 
zer, 23  Mich.  301  ;  Davis  v.  State,  38 
Md.  15,  50 ;  Wade  v.  Thayer,  40  Cal. 
478. 

2  Brown  v.  Mooers,  6  Gray,  451  ; 
Frost  V.  McCargar,  29  Barb.  617; 
Stamper  v.  Griffin,  1 2  Ga.  450 ;  New- 
ton V.  Jackson,  23  Ala.  335.  See, 
however,  Paine  v.  Tilden,  20  Vt.  554; 
Sweet  V.  Sherman,  21  Vt.  23  ;  Clark 
V.  Bond,  29  Ind.  555  ;  Isler  v.  Dewey, 
71  N.  C.  14  ;  Iladjo  v.  Gooden,  13  Ala. 
718.    See  Russell  i^.  Coffin,  8  Pick.  143. 

8  Gardner  v.  Bartholomew,  40  Bar- 
bour, 325. 

*  Heywood  v.  Recd>  4  Gray,  574  ; 
People  V.  Gay,  7  N.  Y.  378. 


^  Harrington  v.  Lincoln,  4    Gray, 
63. 

«  Stacey  v.  Graham,  14  N.  Y.  492. 

'  State  V.  George,  8  Ired.  L.  324. 

»  R.  V.  Parker,  3  Dougl.  242; 
Berkeley  Peerage  case,  cited  2  Ph. 
Ev.  445  ;  EUicott  v.  Pearl,  10  Pet. 
412;  Conrad  v.  Griffey,  11  How.  480; 
State  r.  Holmes,  1  Cliff.  98;  EUicott 
V.  Pearl,  1  McLean,  206;  Ware  t>. 
Ware,  8  Greenleaf,  42;  Stater.  Kings- 
bury, 58  Me.  238;  Judd  v.  Brent- 
wood, 46  N.  H.  430;  Munson  v.  Has- 
tings, 12  Vt.  348  ;  Deshon  r.  Ins.  Co. 
11  Mete.  (Mass.)  199;  Com.  v.  Jen- 
kins, 10  Gray,  485;  Robb  v.  Hacklcy, 
23  Wend.  50;  Dudley  v.  Bolles,  24 
Wend.  465;  Butler  t'.  Truslow,  11 
Barb.  404;  Smith  v.  Stickney,  17 
Barb.  489;  Com.  v.  Carey,  2  Brewst. 
404;  State  i;.  Thomas,  3  Strobh.  269; 
Nichols  V.  Stewart,  20  Ala.  3.0H;  Rinoy 
r.  Vallandingham,  9  Mo.  817;  Quccner 
V.  Morrow,   1    Coldw.  123. 

647 


§  570.]  THE   LAW   OF  EVIDENCE.  [BOOK  II. 

complainant  in  bastardy,  whether  made  before  or  after  her  formal 
accusation  upon  oath,  as  to  the  paternity  of  her  child,  have  been 
held  inadmissible  in  evidence,  when  offered  by  her,  either  to 
show  constancy  or  strengthen  her  credit ;  since  they  have  no 
tendency  to  do  either.  They  are  no  proof,  such  are  the  reasons, 
that  entirely  different  statements  may  not  have  been  made  at 
other  times,  and  are  therefore  no  evidence  of  constancy  in  the 
accusation  ;  and  if  her  sworn  statements  are  of  doubtful  credi- 
bility, those  made  without  the  sanction  of  an  oath,  or  its  equiva- 
lent, cannot  corroborate  them.^  On  the  other  hand,  where  the 
opposing  case  is  that  the  witness  testified  under  corrupt  motives, 
or  where  the  impeaching  evidence  goes  to  charge  the  witness  with 
a  recent  fabrication  of  his  testimony,  it  is  but  proper  that  such 
evidence  should  be  rebutted.^  It  has  consequently  been  ruled 
that  statements  made  by  a  witness  corroborating  his  evidence 
upon  the  trial,  such  statements  being  uttered  soon  after  the 
transaction  in  litigation,  and  at  a  time  when  the  witness  could 
not  have  been  subjected  to  any  disturbing  influences,  are  com- 
petent when  proof  has  been  offered  to  impeach  him  by  showing 
that  he  had  recently  fabricated  the  narrative,  or  that  he  testified 
corruptly.^ 

1  Sidelinger  v.  Bucklin,  64  Me.  371.  pie,  14  111.  434,  recognized  the  exist- 

2  Taylor's  Ev.  §  1330;  Henderson  ence  of  a  conflict  of  authority  upon 
i;.  Jones,  10  Serg.  &  R.  410  ;  Cooke  v.  the  question  whether  the  former  dec- 
Curtis,  6  Har.  &  J.  86  ;  Stolp  v.  Blair,  larations  of  a  witness,  whose  credibil- 
68  111.  543;  Coffin  v.  Anderson,  4  ity  is  attacked,  may  be  given  in  evi- 
Blackf.  395;  Daily  v.  State,  28  Ind.  dence  to  corroborate  his  testimony, 
285  ;  Clark  v.  Bond,  29  Ind.  555  ;  but  did  not  find  it  necessary  in  that 
State  V.  Vincent,  24  Iowa,  570;  State  case  to  determine  in  regard  to  the 
V.  George,  8  Ired.  (L.)  324  ;  State  v.  general  rule,  as  that  case  came  within 
Dove,  10  Ired.  (L.)  469;  March  v.  one  of  the  admitted  exceptions  to  the 
Harrell,    1  Jones   (L.)    329;  Lyles  v.  rule  of  exclusion. 

Lyles,  1  Hill  Ch.  (S.  C.)  76;  People  "We  find   the  decided   weight   of 

V.  Doyell,  48  Cal.  85.  authority  to  be,  that  proof  of  declara- 

3  French  v.  Merrill,  6  N.  H.  465 ;  tions  made  by  a  witness  out  of  court, 
Hotchkiss  V.  Ins.  Co.  5  Hun  (N.  Y.),  in  corroboration  of  testimony  given  by 
91;  Com.  v.  Wilson,  1  Gray,  83.  See  him  on  the  trial  of  a  cause  is,  as  a 
Dossett  t'.  Miller,  3  Sneed,  72 ;  Jack-  general  rule,  inadmissible,  even  after 
son  V.  Etz,  5  Cow.  314;  State  v.  Den-  the  witness  has  been  impeached  or 
nin,  32  Vt.  158.  See  Maitland  v.  discredited  ;  and  we  are  satisfied  with 
Bank,  40  Md.  540;  and  Deshon  v.  the  correctness  of  the  rule.  The  fol- 
Ins.  Co.  11  Mete.  199.  lowing  may  be  referred  among  the  au- 

"  This  court,  in  Gates  v.  The  Peo-     thorities  sustaining  such  rule.     2  Phil. 

648 


CHAP.  VIII.]  WITNESSES  :   HOW   CORROBORATED. 


[§  571. 


§  571.  Ordinarily  a  party  should  introduce  successively,  and 
before  he  closes,  all  the  evidence  he  has  to  sustain  the   witness 
essential  averments  of  his  case.     It  may  happen,  how-   corroborat- 
ever,  that  one  of  his  material  witnesses  may  be  unex-  ^^  ^>  ^'s; 

"'  cretion  of 

pectedly  attacked,  and  the  case  be  made  to  depend  upon  court, 
the  veracity  of  such  witness.  In  such  case  it  is  admissible  not 
merely  to  sustain  the  character  of  the  witness  when  impeached, 
but  to  introduce,  at  the  discretion  of  the  court,  evidence  to  cor- 
roborate the  witness's  statements.  The  exercise  of  this  discre- 
tion is  also  sometimes  prompted  by  a  due  regard  for  time  and 
expense.  A  party  may  have  a  hundred  witnesses  to  prove  a 
particular  point ;  but  if  the  point  should  seem  uncontested,  he 
may  properly  content  himself  with  calling  one.  It  would  be  a 
hard  measure  to  prohibit  him  from  subsequently  calling  other 
witnesses,  under  such  circumstances,  to  sustain  the  witness  first 
called.^  The  point  of  such  corroboration,  however,  must  be 
material.^ 


Ev.  5th  ed.  973,  marginal;  1  Stark. 
Ev.  147;  1  Greenl.  Ev.  §  469;  Robb 
t;.  Hackley,  23  Wend.  50 ;  Gibbs  v. 
Linsley,  13  Verm.  208;  Ellicott  v. 
Pearl,  10  Pet.  412;  Conrad  v.  Griflfey, 
11  How,  480.  A  collection  of  cases 
upon  the  subject,  on  either  side,  will 
be  found  in  the  notes  to  2  Phillips, 
by  Cowen  &  Hill,  979,  marginal,  and 
in  the  case  cited  from  11  Howard. 

"  In  some  places,  as  in  England  and 
New  York,  the  rule  has  been  adopted 
in  the  place  of  a  prior  contrary  one. 
As  recognized  in  Gates  v.  The  People, 
supra,  the  authorities  agree  that  the 
former  statements  may,  in  some  in- 
stances, be  introduced  for  the  purpose 
of  sustaining  his  testimony;  as,  where 
he  is  charged  with  testifying  under 
the  influence  of  some  motive  prompt- 
ing him  to  make  a  false  statement,  it 
may  be  shown  that  he  made  similar 
statements  at  a  time  when  the  imputed 
motive  did  not  exist,  or  when  motives 
of  interest  would  have  induced  him  to 
make  a  different  statement  of  facts. 
So,  in  contradiction  of  evidence  tend- 


ing to  show  that  the  witness's  account 
of  the  transaction  was  a  fabrication  of 
a  recent  date,  it  may  be  shown  that  he 
gave  a  similar  account  before  its  effects 
and  operation  could  be  foreseen.  In 
some  cases  the  admission  of  the  con- 
firmatory statement  has  been  confined 
to  the  sole  case  of  an  impeachment  by 
a  contradictory  statement  of  the  wit- 
ness ;  and  again,  such  confirmatory 
statements  have  been  held  to  be  especi- 
ally not  admissible,  if  they  were  made 
subsequent  to  the  contradictions  proved 
on  the  other  side,  as  in  Ellicott  v.  Pearl, 
supra,  and  Conrad  v.  GrifTey,  supra." 
Sheldon,  J.,  Stolp  v.  Blair,  GS  III.  543. 

1  Boston  11.  K.  V.  Dana,  1  (Jray, 
83  ;  Richardson  v.  Stewart,  4  Binn. 
198;  Losee  i-.  Mathews,  Gl  N.  Y.  C27; 
Wickenkamp  v.  Wickenkamp,  7  7  111. 
92;  Fain  v.  Edwards,  Busbec  L.  64; 
Outlaw  V.  Hurdle,  1  Jones  (N.  C.)  L. 
150;  John  v.  State,  16  Ga.  200;  Bru- 
ton  V.  State,  21  Tex.  337. 

2  McClintock  v.  Whittemore,  16  N. 
H.  268;  Wiggin  i>.  Plumer,  31  N.  II. 
251.     Sec  infra,  §  572. 

549 


§  S74.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


XIV.    REEXAMINATION. 
§  572.  As  to  matters  that  require  explanation,  or  as  to  new 
matter  introduced  by  the  opposing  interest,  a  party  has 
reexamine    a  right,  in  rebuttal,  to  reexamiae  his  witnesses.     As  to 

witness* 

new  matter,  however,  he  cannot  ordinarily  reexamine.^ 
It  has  been  said,  in  qualification  of  this  limitation,  that  where  a 
witness  has  been  shown  to  have  formerly  made  inconsistent  state- 
ments out  of  court,  he  may  be  asked  to  explain  the  motive  and 
circumstances  of  such  statements,^  or  generally,  to  explain  or 
modify  what  he  has  said.^ 

§  573.  It  is  also  said  that  when  a  witness  is  cross-examined  as 
to  inadmissible  matter,  the  party  calling  the  witness  has  a  right 
to  reexamine  as  to  such  matter.* 

§  574.  In  peculiar  cases  when  justice  will  be  thereby  promoted, 
„.  the  judge  may,  at  his  discretion,  permit  a  witness  to  be 

may  be  re-  recalled  in  order  to  be  reexamined  by  the  party  recall- 
ing him.^  This,  however,  will  only  be  granted  on  due 
cause  being  shown,^  and,  as  a  matter  of  discretion,  is  not  review- 


1  Queen's  case,  2  B.  &  B.  297; 
R.  V.  St.  George,  9  C.  &  P.  488 ; 
Prince  v.  Samo,  7  A.  &  E.  627;  5.  C 
3  N.  &  P.  139;  Sturge  u.  Buchanan, 
10  A.  &  E.  605;  Button  v.  Woodman, 
9  Cush.  255 ;  Com.  v.  Wilson,  1 
Gray,  337;  Baxters.  Abbott,  7  Gray, 
71  ;  First  Nat.  Bk.  v.  Green,  43  N. 
Y.  298  ;  Somerville  R.  R.  v.  Doughty, 
22  N.  J.  L.  495  ;  McCracken  v.  West, 
17  Ohio,  16;  Great  West.  R.  R.  v. 
Haworth,  39  111.  346  ;  Wickenkamp  v. 
Wickenkamp,  77  111.  92  ;  Farmers' 
Bk.  V.  Young,  36  Iowa,  45  ;  Jaspers 
«.  Lane,  17  Minn.  296;  Campbell  v. 
State,  23  Ala.  44;  Babeock  v.  Bab- 
cock,  46  Mo.  243;  State  v.  Denis,  19 
La.  An.  119;  State  v.  Scott,  24  La. 
An.  161  ;  Bay  less  v.  Estes,  1  Heisk. 
78;  People  v.  Keith,  50  Cal.  137; 
Ferguson  v.  Rutherford,  7  Nev.  385." 

2  R.  V.  Woods,  1  Crawf.  &  Dix, 
439. 

'  Gilbert  v.  Sage,  5  Lansing,  287; 
Somerville  R.  R.  v.  Doughty,  22  N. 

650 


J.  L.  495.  See  Winchell  v.  Latham, 
6  Cow.  682. 

*  Blewitt  V.  Tregonning,  3  Ad.  & 
E.  554  ;  though  see  Smith  v.  Dreer, 
3  Whart.  R.  154;  Allen  v.  Hancock, 
16  Vt.  230. 

"  It  is  within  the  discretion  of  the 
court  to  permit  any  question  to  be 
asked  on  re-direct  examination  which 
it  was  proper  to  have  admitted  on  the 
examination  in  chief."  Cooley,  J., 
Hemmens  v.  Bentley,  32  Mich.  89. 
See  Anderson  v.  State,  42  Ga.  9 ; 
Donnelly  v.  State,  26  N.  J.  L.  463 ; 
Stockwell  V.  Holmes,  33  N.  Y.  53. 

8  2  Phil.  Ev.  408  ;  Bevan  v.  Mc- 
Mahon,  2  Sw.  &  Tr.  55  ;  Phettiplace 
V.  Sayles,  4  Mason,  312;  U.  S.  i>.  Wilson, 
1  Baldw.  78  ;  Beach  v.  Bank,  3  Wend. 
573;  Thomas  v.  State,  27  Ga.  287; 
Dunham  v.  Forbes,  25  Tex.  23. 

«  Hallock  V.  Smith,  4  Johns.  Ch. 
649;  Hanson  v.  Church,  11  N.  J.  Eq. 
441 ;  Curren  v.  Connery,  5  Binn.  488  ; 
Thomasson  v.  State,  22  Ga.  499. 


CHAP.  VIII.] 


WITNESSES  :   REEXAMINATION. 


[§  574. 


able  by  the  appellate  court.^  So  a  witness  may,  at  the  discre- 
tion of  the  court,  be  permitted  to  return  to  the  stand,  after 
dismissal,  to  correct  his  testimony .^  A  witness  may  also  be  re- 
called at  the  request  of  the  jury.^ 


1  People  V.  Mather,  4  Wend.  229 ; 
Covanhoven  i;.  Hart,  21  Penn.  St.  495; 
Howell  V.  Com.  5  Grat.  664 ;  White 
V.Bailey,  10  Mich.  155;  Williams  v. 
Allen,  40  Ind.  295 ;  Ross  v.  Hayne,  3 
Greene,  211  ;  State  v.  Rorabaclier,  19 
Iowa,  154  ;  State  v.  Haynes,  71  N.  C. 
79  ;  Colclough  v.  Rhodus,  2  Rich. 
(S.  C.)  76;  State  v.  Silver,  3  Dev. 
L.  332;  Jesse  v.  State,  20  Ga.  156; 
Bigelow  V.  Young,  30  Ga.  121  ;  Gayle 
V.  Bishop,  14  Ala.  552  ;  Freleigh  v. 
State,  8  Mo.  606;  German  Bk.  v. 
Kerlin,  53  Mo.  382;  Cotton  v.  Jones, 
87  Tex.  34. 

2  Kingston  v.  Tappen,  1  Johns.  Ch. 
368  ;  Walker  v.  Walker,  14  Ga.  242; 
Dunn  V.  Pipes,  20  La.  An.  276. 

^  Van  Huss  v.  Rainbolt,  2  Coldw. 
139. 

On  the  subject  of  reopening  a  case 
after  it  has  been  formally  closed,  we 
have  the  following  :  "  The  court  of 
appeals  has  just  reversed  a  decision 
of  Vice  Chancellor  Bacon  under  some- 
what unusual  circumstances.  The 
plaintiff  in  the  case  had  filed  a  bill 
against  the  defendant  to  restrain  an 
alleged  nuisance  caused  by  the  noxious 
vapors  proceeding  from  the  latter's 
chemical  works;  and  for  the  defence 
it  was  suggested,  among  other  pleas, 
that  the  plaintiff,  who  was  a  varnish 
manufacturer,  was  in  the  habit  of  using 
chemicals  which  emitted  noxious  va- 
pors, and  was  in  fact  himself  the  cre- 
ator of  the  nuisance  by  which  he  was 
annoyed.  In  support  of  this  a  scien- 
tific witness  was  called,  who  stated 
that  the  '  Brunswick  black,'  which 
the  plaintiff  manufactured,  contained 
'  foreign  asphaltum,'  a  substance  which, 
as  he  proved  by  an  experiment  in  court, 


gave  off  a  noxious  vapor.  The  coun- 
sel for  the  defendant  accordingly  com- 
mented severely  in  his  speech  on  the 
plaintiff's  alleged  attempt  to  deceive 
the  court  by  the  suppression  of  this 
important  fact;  and  at  the  close  of 
his  address  the  plaintiff's  counsel 
asked  leave  to  adduce  evidence  to 
show  that  the  Avhole  of  this  was  a  mere 
mistake ;  that  there  were  two  kinds  of 
asphaltum,  and  that  the  one  which 
the  plaintiff  used  gave  forth  no  noxious 
vapors  at  all.  This  evidence,  how- 
ever. Vice  Chancellor  Bacon  consid- 
ered it  too  late  to  admit.  The  court 
of  appeal,  however,  admitted  it,  and 
on  the  strength  of  it  reversed  the 
vice  chancellor's  decision.  It  was  ad- 
mitted by  Sir  George  Bramwell  in  his 
judgment,  that  the  vice  chancellor  had 
had  the  advantage  of  having  the  wit- 
nesses themselves  before  him,  while 
the  court  of  appeal  had  only  had  the 
short-hand  notes  of  the  evidence. 
The  importance,  too,  of  the  provision 
of  the  judicature  act  for  the  i-icd  voce 
examination  of  witnesses  in  chancery, 
had  to  be  borne  in  mind.  But  the 
legislature  had  also  contemplated  and 
made  provision  for  the  reversal  of  a 
vice  chancellor's  decision  by  the  ap- 
peal court,  even  although  the  former 
had  had  the  advantage  of  having  the 
witnesses  before  him.  And  in  this 
case  the  vice  chancellor  ou'^ht  certain- 
ly to  have  admitted  the  evidence  which 
he  excluded.  Not  to  allow  the  plain- 
tiff to  rebut  the  evidence  produced 
against  him  was  most  unfair,  and, 
with  every  respect  to  the  vice  chan- 
cellor, he  must  say  that  (he  plaintiff 
ought  to  have  been  recalled."  Pall 
Mall  Budget,  Nov.  25,  1876. 

651 


§  576.] 


THE  LAW   OF   EVIDENCE. 


[book  II. 


§  575.  Whenever  explanation  is  required  of  answers  on  reex- 

Re-cross-  amination,  then  the  cross-examining  party  may  re-cross- 

Hon  per-'  examine,  confining  himself  to  the  new    matter   intro- 

niittedat  duced  OH  the  reexamination.^     It  is,  however,  at  the 

discretion  _  _  ' 

of  court.  discretion  of  the  court  to  close  such  re-cross-examina- 
tion when  party  seeking  it  has  had  abundant  prior  opportunity 
to  draw  out  his  case.^ 

XV.    PRIVILEGED    COMMUNICATIONS. 

§  576.  A  lawyer,  no  matter  in  what  capacity  he  may  be  em- 
Lawyer  ployscJ?  is  not,  by  Anglo-American  law,  permitted  to 
not  per-        disclose  Communications  made  to  him  bv  his  client  in 

nutted  to  ... 

disclose        the  course  of  their  professional  relations.     Oral  com- 

communi-  •       ,•  i  i     o  -■/>••      -• 

cations  of  munications  are  thus  protected  ;  "^  and  a  fortiori  does 
'^ '®°  ■  the  privilege  extend  to  cases  stated  for  the  opinion  of 

counsel,*  and  to  written  instruments  held  by  counsel  or  attor- 
neys on  behalf  of  clients.^  The  privilege  is  essential  to  public 
justice ;  for,  did  it  not  exist,  "  no  man  would  dare  to  consult  a 
professional  adviser,  with  a  view  to  his  defence,  or  to  the  en- 
forcement of  his  rights."^  Nor  is  the  privilege  in  any  way 
affected  by  the  statutes  making  parties  witnesses;''  though  it  is 
said  that  a  party  making  himself  a  witness  cannot,  on  ground  of 
the  statute,  refuse  to  answer  as  to  his  confidential  communica- 
tions to  his  counsel.^ 


1  Wood  V.  McGuire,  17  Ga.  303. 

2  Thornton  v.  Thornton,  39  Vt. 
122;  Com.  v.  Nickerson,  5  Allen,  518; 
Koenig  v.  Bauer,  57  Penn.  St.  168; 
State  V.  Hoppiss,  5  Ired.  L.  406. 

8  Cromack  v.  Heathcote,  2  B.  &  B. 
4;  Carpmael  d.  Powis,  1  Phill.  692; 
Greenough  v.  Gaskell,  1  Myl.  &  K. 
101;  Chant  v.  Brown,  9  Hare,  790; 
Jenner  v.  R.  R.  7  Q.  B.  767;  Skinner 
.  V.  R.  R.  L.  R.  9  Exch.  298  ;  Woolley 
V.  R.  R.  L.  R.  4  C.  P.  602;  Maxham 
r.  Place,  46  Vt.434;  Higbee  v.  Dresser, 
103  Mass.  523;  Williams  v.  Fitch,  18 
N.  Y.  550 ;  Britton  v.  Lorenz,  45  N. 
Y.  57;  Graham  v.  People,  63  Barb. 
468;  Bellis,  in  re,  38  How.  (N.  Y.) 
Pr.  79;  Jenkinson  i'.  State,  5  Blackf. 
465;  Orton  v.  McCord,  33  Wise.  205; 

552 


Chahoon  v.  Com.  21  Grat.  822;  State 
V.  Hazleton,  15  La.  An.  72. 

*  Pearse  v.  Pearse,  1  De  Gex  & 
Sm.  25. 

^  Laing  w.  Barclay,  3  Stark.  R.  42; 
Doe  V.  James,  2  M.  &  Rob.  47;  Vo- 
lant V.  Soyer,  13  C.  B.  231  ;  Hawkins 
V.  Howard,  R.  &  M.  64;  Bargaddie 
Coal  Co.  V.  Wark,  3  Macq.  Sc.  Ca. 
468;  Crosby  f.  Berger,  11  Paige,  377. 
Infra,  §  585. 

®  Lord  Brougham  in  Greenough  u. 
Gaskell,  1  Myl.  &  K.  103. 

■^  Montgomery  v.  Pickering,  116 
Mass.  227;  Brand  v.  Brand,  39  How. 
Pr.  193;  Barker  v.  Kuhn,  38  Iowa, 
395.     See  supra,  §  479. 

^  Woburn  v,  Henshaw,  101  Mass. 
193. 


CHAP.  VIII.] 


PROFESSIONAL   PRIVILEGE. 


[§  577. 


§  577.  The  privilege  extends  to  all  knowledge  possessed  by  the 
lawyer  which  he  would  not  have  obtained  if  he  had  not  been 
consulted  professionally  by  his  client.^  Even  when  a  solicitor 
writes  letters  to  a  third  party  for  the  purposes  of  a  suit,  the  an- 
swers are  privileged  ;  ^  and  so  letters  passing  between  a  country 
solicitor  and  his  town  agent  are  privileged.^  Communications, 
even  with  lay  agents,  with  regard  to  the  preparation  of  a  case, 
are  in  like  manner  protected.^ 


*  Greenough  v.  Gaskell,  1  M.  &  K. 
98.  Where,  in  an  action  by  the  payee 
of  a  promissory  note  against  the  mak- 
er, it  appeared  that  the  plaintiff  had 
acted  as  attorney  to  the  defendant, 
and  while  holding  that  capacity  had 
obtained  documentary  evidence  from 
the  defendant  which  he  stated  was 
wanted  to  assist  her  in  preparing  a 
case  for  counsel ;  and  on  this  he  relied 
to  take  the  note  out  of  the  statute  of 
limitations.  It  was  held  that  the  evi- 
dence was  inadmissible  for  the  plain- 
tiff; Piatt,  B.,  observing  that  it  would 
never  have  been  in  the  hands  of  the 
attorney,  except  for  the  purpose  of 
his  preparing  a  case  for  counsel;  and 
Martin,  B.,  added:  "  The  client  might 
be  in  error  in  thinking  the  commu- 
nication necessary  to  be  laid  before 
counsel;  but  if  she  communicated  it 
6ona/z(7e,  considering  it  necessary,  the 
communication  was  privileged  and 
could  not  be  divulged."  Cleave  v. 
Jones,  6  Ex.  573. 

2  Simpson  v.  Brown,  33  Beav.  483. 
8  Catt  V.  Tourle,  19  AV.  R.  5G. 

*  Ross  ?'.  Gibbs,  L.  R.  8  Eq.  522  ; 
Preston  u.  Carr,  1  Y.  &  J.  175.  Infra, 
§  594.   ^ 

Mr.  Stephen,  in  his  treatise  on  Ev- 
idence, thus  speaks  :  — 

Article  115.  Professional  commu- 
nications.—  No  legal  adviser  is  per- 
mitted, wlu'thor  during  or  after  the 
termination  of  his  euii)loyment  as  such, 
unless  with  his  client's  express  con- 
sent, to  disclose  any  communication, 


oral  or  documentary,  made  to  him  as 
such  legal  adviser,  by  or  on  behalf  of 
his  client,  during,  in  the  course,  and 
for  the  purpose  of  his  employment, 
whether  in  reference  to  any  matter  as 
to  which  a  dispute  has  arisen  or  other- 
wise, or  to  disclose  any  advice  given 
by  him  to  his  client,  during,  in  the 
course,  and  for  the  purpose  of  such 
employment.  It  is  immaterial  whether 
the  client  is  or  is  not  a  party  to  the 
action  in  which  the  question  is  put  to 
the  legal  adviser. 

This  article  docs  not  extend  to,  — 

(1.)  Any  such  communication  as 
aforesaid  made  in  furtherance  of  any 
criminal  purpose; 

(2.)  Any  fact  observed  by  any  legal 
adviser,  in  the  course  of  his  employ- 
ment as  such,  showing  that  any  crime 
or  fraud  has  been  committed  since 
the  commencement  of  his  employment, 
whether  his  attention  was  directed  to 
such  fact  by  or  on  behalf  of  his  client 
or  not; 

(3.)  Any  fact  with  which  such  legal 
adviser  became  acipiaintcd  otherwi-so 
than  in  his  character  as  such.  Tho 
ex])ression,  "legal  adviser,"  includes 
barristers  and  solicitors,  their  clerks, 
and  interpreters  between  them  and 
their  clients. 

Illustration.  —  A.  being  charged  with 
embezzlement,  retains  B.,  a  barrister, 
to  defend  him.  In  the  course  of  the 
proceedings,  B.  observes  that  an  entry 
has  been  made  in  A.'s  account  book, 
charging  A.  with  the  sum  said  to  have 

553 


§  578.]  THE   LAW   OF  EVIDENCE.  [BOOK  II. 

Sir  James  Wigram  thus  briefly  states  the  necessity  of  the 
rule  :  "  So  long  as  the  state  of  the  law  shall  make  it  impossible 
for  parties  to  be  their  own  lawyers,  and  to  act  without  profes- 
sional advice,  it  is  indispensably  necessary  that  the  privileges 
now  conceded  to  professional  communications  should  be  main- 
tained." 1  Lord  Brougham,  on  the  same  topic,  makes  the  follow- 
ing distinction :  "  To  compel  a  party  himself  to  answer  upon 
oath,  even  as  to  his  belief  and  thought,  is  one  thing ;  nay,  to 
compel  him  to  disclose  what  he  has  written  and  spoken  to  others, 
not  being  his  professional  advisers,  is  competent  to  the  party 
seeking  the  discovery ;  for  such  communications  are  not  neces- 
sary to  the  conduct  of  judicial  business,  and  the  defence  or  pros- 
ecution of  men's  rights  by  the  aid  of  skilful  persons.  To  force 
from  the  party  himself  the  production  of  communications  made  by 
him  to  professional  men,  seems  inconsistent  with  the  possibility 
of  an  ignorant  man  resorting  to  professional  advice,  and  can  only 
be  justified  if  the  authority  of  decided  cases  warrants  it.  But 
no  authority  sanctions  the  much  wilder  violation  of  professional 
confidence,  and  in  circumstances  wholly  different,  which  would 
be  involved  in  compelling  counsel,  or  attorneys,  or  solicitors,  to 
disclose  matters  committed  to  them  in  their  professional  capac- 
ity ;  and  which,  but  for  their  employment  as  professional  men, 
they  would  not  have  become  possessed  of."  ^ 

§  578.  A  formal  retainer  is  not  necessary  to  constitute  a  re- 
Notneces-    lationsliip  whosc  communications  the  law  will  treat  as 

sary  that         ... 

relation-       inviolable.^     It  is  enough,  to  enable  the  protection  of 

ship  should  ,  itiii.-  li- 

be  formally   the   iaw  to  apply,  that  a*  legal  adviser  is  sought  tor 

instituted. 

been  embezzled,  which  entry  was  not  one  can  be  compelled  to  disclose  to 

in  the  book  at  the  commencement  of  the  court  any  communication  between 

B.'s  employment.     This  being  a  fact  himself  and  his  legal  adviser,  which 

observed  by  B.  in   the  course  of  his  his  legal  adviser   could   not   disclose 

employment,  showing  that  a  fraud  has  without    his    permission,    although   it 

been  committed  since  the  commence-  may  have  been  made  before  any  dis- 

ment  of  the  proceedings,  is  not  pro-  pute  arose  as  to  the  matter  referred  to. 

tected  from  disclosure  in  a  subsequent  ^  Woods   v.   Woods,   4   Hare,   83, 

action  by  A.  against  the  prosecutor  in  Wigram,  V.  C. 

the  original  case  for  malicious  prose-  ^  Greenough  v.   Gaskell,  1  Myl.  & 

cution.     Brown  v.  Foster,  1  H.  &  N.  K.  98. 

736.  3  Ross  V.  Gibbs,  L.  R.  8  Eq.  522; 

Article    116.      Confidential    com-  Foster  v.   Hall,    12  Pick.  89;  Beltz- 

municadons  with   legal   advisers.  —  No  hoover  v.  Blackstock,  3  Watts,  20. 

554 


CHAP.  VIII.]  PROFESSIONAL  PRIVILEGE.  [§  579. 

the  purpose  of  confidential  professional  advice,  "  with  a  view 
either  to  the  prosecution  of  a  claim,  or  a  defence  against  a 
claim."  ^  The  protection  has  been  even  held  to  reach  cases  in 
which  a  person  has  been  consulted  under  the  belief  that  he  was 
a  professional  lawyer,  which  he  really  was  not ;  ^  and  also,  to 
cases  where  the  communications  were  made  under  the  erroneous 
belief  that  the  party  consulted  had  consented  to  act  as  counsel.^ 
An  attorney,  however,  has  been  compelled  to  testify  as  to  non- 
confidential statements  made  to  him,  before  retainer,  by  one  who 
afterwards  became  his  client.^  An  injunction  of  secrecy  is  not 
necessary  to  protect  the  communications.^ 

§  579.  It  has  been  already  incidentally  noticed  that  it  is  not 
necessary  that  the  communications  should  be  in  refer-   Nor  that 
ence  to  any  particular  suit.    Lord  Shelborne  thus  recap-   niunica-' 
itulates  the  equity  practice  in  a  case  where  discovery   ''l""^l^l  i,e 

was  sought  from  the  plaintiff  :  ^  "  There  is  a  Ciudg-   I'^'i^'p.  ^"'■- 
°  r  \j     o     ,„g  1, liga- 

ment) by  that  most  accurate  and  learned  judge,  Sir  R.   tion. 

T.  Kindersley,''  which  contains  a  statement  of  the  vice  chancel- 
lor's view  of  the  principle,  and  also  of  the  rule  which  in  1859 
had  come  to  be  well  settled  and  established  in  this  court  on  the 
foundation  of  that  principle.  He  says,  '  It  is  not  now  necessary, 
as  it  formerly  was,  for  the  purpose  of  obtaining  production,  that 
the  communications  should  be  made  either  during  or  relating  to 
an  actual  or  even  to  an  expected  litigation.  It  is  sufficient  if 
they  pass  as  professional  communications  in  a  professional  capac- 
ity.' I  can  only  say  that  I  agree  with  the  views  both  of  the 
principle  and  of  its  proper  extension  taken  in  these  later  authori- 
ties." 

Lord  Brougham,  in  a  case  which  Mr.  Hare  adopts  as  leading 

1  Sir  John  Stuart  in  Ross  v.  Gibbs,  «  Calley  v.  Richards,  19  Beav.  401. 

L.  R.  8  Eq.  522 ;  S.  P.,  Wilson  v.  R.  Conlra,    Bellis,   in   re,    3    Ben.   386; 

R.  L.  R.  14  Eq.  477  ;  Minet  v.  Mor-  Sample  v.  Frost,  10  Iowa,  2(JG. 

gan,    L.    R.    8    Ch.    361;  Sargent  v.  »  Smiths.  Fell,  2  Ourt.  667. 

Hampden,  38  Me.  581;  March  v.  Lud-  *  Cutts  v.  Pickering,  1  Ventr.  197. 

lam,  3  Sandf.  Ch.  35.     See,  however,  ^  Wheeler  r.  Hill,  16  Mo.  329. 

Wilson  V.  Rastall,  4  T.  R.  753.  «  Minet  v.  Morgan,  L.  U.  8  Ch.  361. 

Communications  by  a  married  wo-  See,  also,  Turton  v.  Barber,  L.  R.    17 

man  to  her  husband's  attorney,  as  to  Ecj.  329. 

her  separate  interests,  are  privileged.  ''  Lawrence    v.   Campbell,  4   Drew. 

Scranton  v.  Stewart,  52  Jnd.  68.  485. 

655 


§  579.]  THE  LAW   OF   EVIDENCE.  [BOOK  II. 

and  masterly,^  argues  forcibly  to  the  same  effect :  "  We  are  here 
to  consider,  not  the  case  which  has  frequently  arisen  in  courts  of 
equity,  and  more  than  once  since  I  came  into  this  court,  of  a 
party  called  upon  to  produce  his  own  communications  with  his 
professional  advisers."  ....  "  Here  the  question  relates  to  the 
solicitor,  who  is  called  upon  to  produce  the  entries  he  made  in 
accounts  and  letters  received,  by  him,  and  those  written  (chiefly 
to  his  town  agent)  by  him,  or  by  his  direction,  in  his  character 
or  situation  of  confidential  solicitor  to  the  party  ;  and  I  am  of 
opinion  that  he  cannot  be  compelled  to  disclose  papers  delivered, 
or  communications  made  to  him,  or  letters,  or  entries  made  by 
him  in  that  capacity."  After  the  passage,  attributed  to  him 
above,  he  proceeds  (speaking  of  counsel  and  solicitor)  :  "  As 
regards  them,  it  does  not  appear  that  the  protection  is  qualified 
by  any  reference  to  proceedings  pending  or  in  contemplation. 
If,  touching  matters  that  come  within  the  ordinary  scope  of  pro- 
fessional employment,  they  receive  a  communication  in  their  pro- 
fessional capacity,  either  from  a  client  or  on  Ms  account.,  and  for 
his  benefit  in  the  transaction  of  his  business  ;  ^  or,  which  amounts 
to  the  same  thing,  if  they  commit  to  paper,  in  the  course  of  their 
employment  on  his  behalf,  matters  which  they  know  only  through 
their  professional  relation  to  their  client,  they  are  not  only  justi- 
fied in  withholding  such  matters,  but  bound  to  withhold  them, 
and  will  not  be  compelled  to  disclose  the  information,  or  produce 
the  papers  in  any  court  of  law  or  equity,  either  as  party  or  wit- 
ness. If  this  protection  were  confined  to  cases  where  proceed- 
ings had  commenced,  the  rule  would  exclude  the  most  confiden- 
tial, and,  it  may  be,  the  most  important  of  all  communications  ; 
those  made  with  a  view  of  being  prepared  for  instituting  or 
defending  suit,  up  to  the  instant  that  the  process  of  the  court 
issued.  If  it  were  confined  to  proceedings  begun  or  in  contem- 
plation, then  every  communication  would  be  unprotected  which 
a  party  makes  with  a  view  to  his  general  defence  against  attacks 
which  he  apprehends,  although  at  the  time  no  one  may  have 
resolved  to  assail  him.     But,  were  it  allowed  to  extend  over 

^  Hare  on  Discovery  (2d  ed.),  148,         ^  Qq  the  words  in  italics,  see  Ford 
158,  citing    Greenough  v.   Gaskell,  1     v.  Tennant,  32  Beav.  162. 
Myl.  &K.  98,  100,  101,  115. 

556 


CHAP.  VIIL]  professional   PRIVILEGE.  [§  580. 

sucli  communications,  the  protection  would  be  insufficient,  if  it 
only  included  communications  more  or  less  connected  with  ju- 
dicial proceedings ;  for  a  person  oftentimes  requires  the  aid  of 
professional  advice  upon  the  subject  of  his  rights  and  his  liabili- 
ties, with  no  reference  to  any  particular  litigation,  and  without 
any  other  reference  to  litigation  generally  than  all  human  affairs 
have,  in  so  far  as  every  transaction  may,  by  possibility,  become 
the  subject  of  judicial  inquiry.  It  would  be  most  mischievous, 
said  the  learned  judges  in  the  common  pleas,  '  if  it  could  be 
doubted  whether  or  not  an  attorney,  consulted  upon  a  man's  title 
to  an  estate,  was  at  liberty  to  divulge  a  flaw.'  "...."  The 
rules  of  evidence  are  the  same  on  both  sides  of  the  hall." 

Lord  Lyndhurst,  approving  of  the  case  just  quoted,  laid  down 
the  rule  that  where  an  attorney  is  employed  by  a  client  profes- 
sionally, to  transact  professional  business,  all  the  communica- 
tions that  pass  between  the  client  and  the  attorney,  in  the  course, 
and  for  the  purpose  of  that  business,  are  privileged.^ 

§  580.  To  permit  professional  confidence  to  be  invaded  when 
professional  relations  terminate,  would  put  the  client  at   Nor  is 
the  counsel's  mercy,  for  professional  relations  miglit  be    |J,"t  J,,^^^ 
terminated  in  order  that  professional  communications   jl'on'orre- 
might  be  disclosed.     The   client,  indeed,  may  remove   tionsinp. 
the  prohibition  by  consent  that  his  counsel  should  be  examined,^ 
which  consent  cannot  be  implied  by  the  client  merely  calling  the 
lawyer  as  a  witness,  without  examining  him  as  to  such  commu- 
nications.'^    If  he  do  not,  dissolution  of  their  connection,  no  mat- 
ter how  it  may  occur,  works   no  change  in  regard  to   the   in- 
violability of  their  intercourse*    Even  an  assignee  in  bankruptcy 

^  Herring  v.  Cloberry,  1  Ph.  91,  a  Abinger.   The  privilege  extends  to  an 

suit  to  rectify  an  old  settlement,  solic-  attorney's  clerk.     Taylor  r.  Forstor,  2 

itor  employed  to   prepare  the    deed,  Car.  &  T.  195,  cited  Hare  on  Disc.  161. 

but  never  acted  again ;  Jones  v.  Pugh,  *  Merle  v.  More,  lly.  &  M.  390. 

1  Ph.  96,  citing  Harvey  v.  Clayton,  2  8  Vaillant  v.  Dodemead,  2  Atk.524; 

Swans.  221,  in  note  ;  protection  given  Bate  v.  Kinsey,  1  C,  M.  &  R.  .SS. 

to  a   scrivener;    Carpmcal   v.    Powis,  *  Wilson   v.    Rastall,  4   T.  R.  759 

1  Ph.  687;  sale  of  an  estate;  Davies  Cholmondeley  r.  Clinton,  19  Ves.  268 

V.  Waters,   9  Mecs.  &  W.   608;    deed  Charlton    v.    Coombes,    4    GilT.    .•J72 

only  read  by  attorney  just  previously  Calley    v.    Richards,    19    Beav.    -101 

at  a  consultation;  Wheatley   y.  Wil-  Russell    v.    Jackson.    9    Hare,    387 

liams,  1  Mees.  &  W.  553,  per  Lord  Chant  v.  Brown,  7  Hare,  79. 

657 


§  582.] 


THE  LAW   OF   EVIDENCE. 


[book  n. 


is  not  empowered  to  consent  that  the  professional  communica- 
tions of  his  assignor  should  be  disclosed.^  Information,  how- 
ever, which  is  imparted  after  the  relationship  terminates,  is  not 
privileged.2 

§  581.  Nor  is  it  necessary  that  such  communications,  to  be 
privileged,  should  relate  to  matters  in  litigation.  A 
scrivener  appointed  to  raise  money,^  a  conveyancer 
employed  to  draw  deeds,*  counsel  consulted  as  to 
family  or  other  arrangements  without  reference  to 
litigation,^  are  placed  under  the  same  restrictions. 
But  it  is  otherwise  as  to  a  law  student  whom  the  party 
visits  for  the  purpose  of  obtaining  information  as  to  the  law.^ 
Communications  in  preparation  of  a  case  are  hereafter  noticed.'' 

§  582.  Whoever  represents  a  lawyer,  in  conference  or  corre- 
So  also  as  spondence  with  the  client,  is  under  the  same  protec- 
representa-  ^^^^^  ^^  ^^^^  lawyer  himself.^  An  interpreter  interven- 
tives.  jj^g  between  client  and  lawyer  is,  therefore,  privileged,^ 

and  so  is  the  lawyer's  executor,^^  but,  as  we  will  see,  it  is  other- 


Privilege 

includes 
scrivener 
and  con- 
veyancer 
as  well  as 
general 
counsel. 


The  privilege  applies  as  much  to 
communications  made  before,  as  to 
those  made  during,  litigation.  Minet 
V.  Morgan,  L.  R.  8  Ch.  361  ;  42  L.  J. 
Ch.  627;  21  W.  R.  467;  cf.  Wilson 
V.  North  Hampton  Railway  Co.  L.  R. 
14  Eq.  477;  20  W.  E.  938;  Powell's 
Evidence  (4th  ed.),  118. 

1  Bowman  v.  Norton,  5  C.  &  P. 
177. 

2  Cobden  v.  Kendrick,  4  T.  R.  431. 
8  Turquand  v.  Knight,  2  M.  &  ^Y. 

100;  though  see  Coon  v.  Swan,  30 
Vt.  6  ;  De  Wolf  v.  Strader,  26  111. 
225. 

*  Carpmael  r.  Powis,  1  Phill.  68  7; 
Cromack  v.  Heathcote,  2  B.  &  B.  4; 
though  see  remarks  of  Parke,  B.,  in 
Turquand  v.  Knight,  2  M.  &  W.  100. 

6  R.  V.  Withers,  2  Camp.  .578  ;  Wal- 
singham  v.  Goodricke,  3  Hare,  124  ; 
Desborough  i;.  Rawlins,  3  Myl.  &  Cr. 
515;  Sawyer  v.  Birchmore,  3  Myl.  & 
Cr.  572;  Carpmael  v.  Powis,  9  Beav. 

558 


16  (overruling  Williams  v.  Mudie,  1 
C.  &  P.  158;  S.  C.  1  C.  &  P.  158; 
Clark  V.  Clark,  1  M.  &  Rob.  3)  ; 
Wadsworth  v.  Hanshaw,  2  B.  &  B.  5. 

^  Barnes  v.  Harris,  7  Cush.  576. 

^  Infra,  §§  593-4. 

*  Parker  v.  Hawkshaw,  2  Stark. 
239;  Du  Barre  v.  Livette,  Pea.  R.  77; 
Chenton  v.  Frewen,  2  Drew.  &  Sm. 
390;  Bunbury  v.  Bunbury,  2  Beav. 
1 73  ;  Walker  v.  Wildman,  6  Madd. 
47;  Goodell  v.  Little,  1  Sim.  N.  S. 
155  ;  Lafone  v.  Falkland  Islands  Co. 
4  Kay  &  J.  34  ;  Taylor  v.  Forster,  2 
C.  &  P.  195  ;  Chant  v.  Brown,  9  Hare, 
790 ;  Mills  V.  Oddy,  6  C.  &  P.  731  ; 
Ross  V.  Gibbs,  L.  R.  3  Q.  B.  91 ;  Fen- 
ner  v.  R.  R.  L.  R.  7  Q.  B.  767  ; 
Jackson  v.  French,  3  Wend.  337  ; 
Brand  i,-.  Brand,  39  How.  (N.  Y.) 
Pr.  193  ;  Sibley  v.  AVaffle,  16  N.  Y. 
180. 

^  Du  Barre  v.  Livette,  ut  supra. 

"  Fenwick  v.  Reed,  1  Mer.  114. 


CHAP.  VIII.] 


PROFESSIONAL   PRIVILEGE. 


[§  584. 


not  be 
compelled 
to  disclose 
his  com- 
munica- 
tions to  his 
lej^al  ad- 
viser. 


wise  with  a  business  agent,  not  a  lawyer,  or  representing  a  law- 
yer, whom  the  client  consults.^ 

§  583.  The  question  whether  a  client  can  be  compelled  to  dis- 
close his  confidential  communications  to  his  legal  adviser,  draws 
peculiar  interest  from  the  statutes  enabling  parties  to  ^^jj^^^  ^^^_ 
be  called  as  witnesses  by  their  opponents.  It  is  ob- 
vious that  the  guard  against  the  disclosure  of  such 
communications  by  counsel  would  be  a  mockery  if  the 
client  could  be  compelled  to  disclose  that  as  to  which 
counsel's  lips  are  sealed.  It  would  be  absurd  to  protect 
by  solemn  sanctions  professional  communications  when  the  law- 
yer is  examined,  and  to  leave  them  unprotected  at  the  examina- 
tion of  the  client.  The  English  House  of  Lords,  however,  in  a 
case  of  comparatively  early  date,  intimated  that  a  client  might 
be  compelled  by  bill  in  equity  to  disclose  any  communications 
made  by  him  to  his  counsel  before  litigation  had  been  invoked  ;  ^ 
but  in  England  this  distinction  has  been  deplored  if  not  repudi- 
ated,2  ajj(j  jj^  l\^Q  United  States  has  never  been  tolerated.  The 
true  view  is,  that  communications  which  the  lawyer  is  precluded 
from  disclosing  the  client  cannot  be  compelled  to  disclose.^ 
Where,  however,  a  party  offers  himself  as  a  witness,  it  seems 
that  he  may  be  asked  as  to  his  communications  to  his  counsel,  if 
part  of  the  case  he  undertakes  to  prove.^ 

§  584.   The  protection  insured  by  the  relationship  of  lawyer 
and  client  may  be  lost  when  not  claimed  by  the  party   Privilege 
privileged ;  ^  though  it  is  said  not  to  be  extinguished  claimed  in 


1  Infra,  §  593. 

a  Radcliffe  v.  Fursman,  2  Br.  P.  C. 
C.  514. 

'  Walsingham  v.  Goodricke,  3  Hare, 
127  ;  Meath  v.  Winchester,  10  Bli. 
375  ;  Walker  v.  Wildman,  6  Madd. 
97;  Preston  v.  Carr,  1  Y.  &  G.  175; 
Pearse  v.  Pearse,  1  De  Gex  &  Sm. 
24;  Minct  v.  Morgan,  L.  R.  8  Ch. 
Ap.  361,  See  Dr.  Lushington's  ob- 
servations in  the  Macgrcgor  Laird,  1 
Ad.  &  E.  307. 

*  Thompson  v.  Falk,  1  Drew.  21  ; 
Vent  V.  Pacey,  4  Russ.  193;  Combe 
V.  London,  1  Russ.  631;  Ilohnes  i;. 
Baddeley,  1  Phill.  4  76;  Hemenway  v. 


Smith,  28  Vt.  701;  Carnes  i'.  Ph\tt,  36 
N.  Y.  Sup.  Ct.  360;  5.  C.  15  Abb. 
Pr.  N.  S.  337;  Biglcr  t;.  Rogher,  4  3 
Ind.  112. 

^  Woburn  v.  Ilenshaw,  101  Mass. 
193.     See  supra,  §  4  79. 

'  Hare  on  Discovery  (2il  ed.),  167; 
Walsh  V.  Trevanion,  15  Sim.  577  ; 
Hunter  v.  Capron,  5  Beav.  93  ;  Dart- 
mouth V.  Iloldsworth,  10  Sim.  4  76  ; 
Thomas  v.  Rawliiigs,  27  Beav.  140. 
Sec,  however,  People  v.  Atkinson, 
40  Cal.  284,  where  it  was  said  th.it 
the  court  would  interpose  of  its  own 
motion;  and  see  supra,  §^  281-283. 

659 


§  586.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


order  to  be  ^y  agreement  or  compromise.^  The  privilege,  a  for- 
and  may  tioH^  may  be  "waived  by  the  client.^  The  evidence  of 
the  waiver,  however,  must  be  distinct  and  unequivocal.^ 
§  585.  What  has  been  said  applies,  as  we  have  already  no- 
ticed, with  equal  force  to  the  client's  documents  in  his 
lawyer's  hands.*  Thus  it  has  been  held,  that  when  a 
solicitor  holds  a  document  for  his  client,  he  cannot, 
against  the  will  of  his  client,  be  compelled  to  produce 
it,  even  by  a  person  who  has  an  equal  interest  in  it  with  his 
client.^  But  a  solicitor  may  be  asked  whether  he  has  papers  of 
his  client  in  court ;  and  if  by  his  answer,  which  is  compulsory, 
he  admit  the  fact,  secondary  evidence  of  their  contents  may  be 
given  if  the  originals  are  not  produced.^     And  although  counsel 


Privilege 
applies  to 
client's 
documents 
in  lawyer's 
bands. 


1  Tiirney  v.  Bailey,  34  Beav.  105; 
Hughes  V.  Garnons,  6  Beav.  352. 

2  "  Several  questions  of  an  im- 
peaching nature  were  excluded,  on 
the  ground  that  Fuller  made  them  to 
his  counsel,  and  they  were,  therefore, 
privileged.  We  think  the  rule  of 
privilege  was  misconstrued.  We  have 
no  disposition  to  narrow  or  hamper 
privileged  communications  between 
clients  and  their  attorneys  or  counsel. 
We  concur  fully  in  the  broad  and  sen- 
sible doctrine  laid  down  by  Lord  Shel- 
borne,  in  Minet  v.  Morgan,  L.  R.  8 
Ch.  Ap.  361,  that  neither  client  nor 
attorney  can  be  compelled  to  answer 
and  disclose  matters  of  confidence. 
But  the  privilege  is  one  created  solely 
for  the  benefit  of  the  client,  and  there 
is  no  ground  for  protection  where  he 
waives  it.  1  Greenl.  Ev.  §  243  ;  1 
Stark.  Ev.  40;  Benjamin  v.  Coventry, 
19  Wend.  R.  353."  Campbell,  J., 
Hamilton  v.  People,  29  Mich.  183. 

3  "  At  the  hearing,  before  a  single 
justice,  the  plaintiff  herself  testified, 
and  called  as  a  witness  one  who  had 
been  her  legal  adviser  in  reference  to 
the  transactions  in  question.  He  was 
not  then  asked  as  to  his  communica- 
tions with  his  client,  but  he  Avas  cross- 
examined  by  the  defendant's  counsel 

560 


as  to  all  matters  of  fact  which  came 
to  her  knowledge  before  the  execution 
of  the  deed.  After  the  evidence  was 
all  in,  he  was  recalled  and  asked  by 
the  defendant  what  conversations  he 
had,  as  counsel,  with  the  plaintiff,  in 
reference  to  making  the  deed  and  giv- 
ing the  receipt,  and  for  what  reason 
he  advised  the  delivery  of  the  deed. 
But  it  was  ruled  that  what  passed 
between  counsel  and  client  was  not 
admissible,  and  the  evidence  was  ex- 
cluded. 

"  It  is  contended  that  this  ruling 
was  wrong,  because  exclusion  of  the 
evidence  offered  is  a  privilege  which 
the  client  may  waive,  and  in  this  case 
has  waived,  by  becoming  a  witness  in 
her  own  behalf.  But  this  alone,  in  the 
opinion  of  the  court,  does  not  amount 
to  such  a  waiver."  Colt,  J.,  Mont- 
gomery V.  Pickering,  116  Mass.  231. 

4  Supra,  §§  150,  576  ;  Laing  v.  Bar- 
clay, 3  Stark.  R.  42;  Volant  v.  Soyer, 
13  C.  B.  231;  Bargaddie  Coal  Co.  v. 
Wark,  3  Macq.  S.  C.  668;  Crosby  v. 
Berger,  11  Paige,  377. 

8  iS^ewton  V.  Chaplin,  10  C.  B.  356. 

6  Dwyer  v.  Collins,  7  Ex.  639; 
Brandt  v.  Klain,  17  Johns.  335.  Su- 
pra, §  154;  Powell's  Evidence,  4th 
edition,    119.      See,    also,  Phelps    v. 


CHAP.  VIII.]  PROFESSIONAL  PRIVILEGE.  [§  587. 

can  be  compelled  to  produce  any  paper  whose  production  would 
have  been  obligatory  on  the  client  so  far  as  to  let  in  secondary 
evidence  of  contents,^  yet  the  fact  that  the  papers  were  commu- 
nicated to  him  by  his  client  for  his  professional  opinion,  is  a 
good  excuse  for  their  non-production. ^  This  production  is  pe- 
culiarly applicable  to  cases  where  the  lawyer  is  called  upon  by 
subpoena  to  produce  his  client's  papers,  his  client  being  a  stranger 
to  the  suit.  Were  it  not  so,  no  man's  titles,  so  it  is  argued  in 
England,  could  be  safe  from  fishing  explorations  for  the  purpose 
of  discovering  defects.^  In  this  country,  under  our  registry  sys- 
tem, the  reason  is  less  applicable ;  but  the  principle  still  ob- 
tains. 

§  586.  If  a  legal  adviser  permits  his  client's  papers  to  pass  out 
of  his  hands  into  those  of  strangers,  or  if  such  papers   Privilege 
are  in  any  way  extracted  from  his  custody,  they  may   !"*'  ^^  '^ 
be  put  in  evidence  by  the  party  by  whom  they  are   n»ents 
held,  as  against  the  client.    So  far  has  this  been  pushed,   by  legal 

•  •  •         ftdviscr 

that  it  has  been  held  that  if  an  attorney  permits  a  wit- 
ness to  see  such  writings,  such  witness,  not  being  a  clerk  of  the 
attorney  or  legal  adviser  of  the  client,  may  be  called  to  give  sec- 
ondary evidence  of  the  writings,  due  notice  being  first  given  to 
produce  them  on  trial.'*  It  is  otherwise  as  to  papers  passing  into 
the  hands  of  the  attorney's  agents  or  representatives  ;  the  papers, 
in  such  hands,  being  entitled  to  the  same  protection  they  enjoyed 
when  in  the  hands  of  the  attorney.^ 

§  587.  It  is  easy  to  conceive  of  cases  in  which  two  or  more 
persons  address  a  lawyer  as  their  common  agent.  So  Communi- 
far  as  concerns  a  stranger,  their  communications  to  the  ^^  privi'. 
lawyer  would  be  privileged.  It  is  otherwise,  however,  if^f';,\;X"fo 
as  to  themselves ;  and  as  they  stand  on  the  same  foot-  ^CJ';^^'^  ^Jl 
ing  as  to  the  lawyer,  either  could  compel  him  to  testify   viscr. 

Prew,  3  E.  &  B.  430;  23  L.  J.  Q.  B.  Gilbert,  7  M.  &  W.  102;  Doe  v.  Lang- 

140.  don,  12  Ad.  &  El.  (N.  S.)  711.     See 

*■  Ibid.;  Ramsbotliam  v.  Senior,  L.  supra,  §  581. 

R.  8  Eq.  575;  Campbell,  ex  parte,  L.  «  K.  v.  Hunter,  3  C.  &  P.  591,  and 

R.  5  Ch.  Ap.  703;  Rboades   v.    Selin,  ca.scs  cited  above. 

4  Wash.  C.   C.    718;  Durkce   j;.   Le-  ■•  Lloyd  r.  Mosfyn,  10  M.  &  W.  481 ; 

land,  4  Vt.  CI 2.  tlion^b  see  Fisher  v.  Homing,   1   Ph. 

2  Dwyer  v.   Collins,   ut  supra ;  Be-  Ev.  1 70. 

van  t).  Waters,  1    M.  &    M.  235;  Doe  ^  Fenwick   v.  Reed,   1   Mcriv.    111. 

Harris,  5   C.    &    P.    592;    Doe    v.  120. 

VOL.  I.            36  561 


§  588.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

against  the  other  as  to  their  negotiations. ^  So  a  communication 
which  is  made  by  one  party  to  a  mutual  attorney  for  the  pur- 
pose of  being  forwarded  to  the  other  party,  is  taken  out  of  the 
range  of  confidence,  and  may  be  disclosed  on  trial  as  far  as  it  was 
meant  to  be  disclosed  before  trial.^  So  when  communications 
from  an  adverse  party  are  made  to  the  attorney  as  representing 
the  client,  the  attorney  may  be  subsequently  compelled  to  dis- 
close such  communications.^  It  is  otherwise,  however,  when  no 
such  liberty  of  disclosure  is  given  the  attorney  acting  as  the  com- 
mon agent.  Papers  put  in  his  hands  by  either  party,  not  to  be 
shown  to  the  other,  but  to  be  used  exclusively  for  his  own  in- 
formation, he  will  not  be  peiunitted  to  communicate.^  Privilege, 
also,  has  been  held  not  to  extend  to  communications  made  to 
counsel  in  the  presence  of  all  the  parties  to  the  controversy;"  nor 
to  communications,  as  we  have  seen,  made  b}^  a  party  to  a  law 
student  whom  the  party  thinks  proper  independently  to  consult ;  ^ 
nor  to  communications  overheard  by  a  third  person,  so  far  as  such 
third  person  is  concerned.'^ 

§  588.  If  it  should  be  held  that  a  lawyer's  lips  are  sealed  as 
Lawyer  to  all  matters  which  he  heard  professionally,  though  he 
Te^ed^as'to  ^^^^  ^^  ^^®  same  time  extra-professional  knowledge  of 
informa-      ^]^q  same  subicct  matter,  then,  all  that  would  be  neces- 

tion  re-  _  J  '  ' 

ceived  by  sary,  in  order  to  preclude  a  lawyer  from  rendering  ad- 
profession-  verse  testimony  in  a  case,  would  be  for  the  party  to  be 
asprofes-  injured  by  such  testimony  to  communicate  the  same 
siona  y.  f^cts  to  the  lawyer  in  professional  confidence.  Such  a 
result,  however,  could  not  be  tolerated  ;  and  for  this  and  other 
reasons,  it  has  been  held  that  privilege  in  this  relation  does  not 
extend  to  information  a  lawyer  has  received  from  others  than  his 
client,  though  his  client  may  have  given  the  same  information.^ 

*  Shore  V.  Bedford,   5  Man.  &   G.  '  Spenceley    v.      Scliulenburgh,    7 

271  ;  Reynolds  v.  Sprye,  10  Beav.  51;  East,  357  ;  Desborough  v.  Rawlins,  3 

Warde  v.  Warde,  3   M.  &  Gord.  365  ;  Myl.  &  Cr.  515. 

Earle  v.  Grout,  46  Vt.  113;  Hatton  *  Doe  t-.   Watkins,  3  Bing.   N.    C. 

V.  Robinson,   14   Pick.    416;  Rice  v.  421;    Doe   v.  Seaton,    2    A.    &    E. 

Rice,  14  B.  Monr.  417.  171. 

2  Perry  v.  Smitb,  9   M.  &  W.  681;  ^  Britton  v.  Lorenz,  45  N.  Y.  51. 

Reynolds  r.  Sprye,  10  Beav.  51;  Baugh  ®  Barnes  v.  Harris,  7  Cusla.  576. 

V.  Cradocke,  1  M.   &  Rob.  182.     See  '  Hoy  v.  Morris,  13  Gray,  519. 

remarks   of  Parke,  B.,  5   B.   &    Ad.  ^  Marsh  v.  Keith,   1  Drew.  &    Sm. 

503.  342;  Davies  v.  Waters,  9   M.  &  W. 
562 


CHAP.  VIII.]  PROFESSIONAL   PRIVILEGE.  [§  589. 

Peculiarly  is  this  the  case  when  the  information  was  received  by 
the  attorney  when  acting  as  a  party  witli  a  joint  interest  with 
the  client,  and  not  as  his  professional  adviser,^  or  when  the 
knowledge  was  received  in  the  progress  of  a  trial.^  It  has  also 
been  held  that  privilege  does  not  protect  statements  made  by 
client  to  counsel  for  the  purpose  of  obtaining  information  as  to 
matters  of  fact,  as  distinguished  from  matters  of  law  ;  ^  or  state- 
ments made  to  the  counsel  in  the  presence  of  third  pai'ties,  such 
parties  not  being  concerned  in  a  confidential  consultation  ;  *  or 
statements  made  to  counsel  in  order  to  induce  him  to  believe 
that  the  cause  is  one  he  can  undertake  without  breach  of  duty  to 
another  client.^ 

§  589.  It  may  happen,  also,  that  the  information  communi- 
cated belongs  to  ordinary  as  distinguished  from  profes-   ^  r 

°  JO  1  Informa- 

sional  intercourse  ;  and  if  this  be  clearly  the  case,  no    t'""  not  in 

**  tli6  scone 

professional  privilege  will  shield  from  disclosure.    The   of  profis- 
topic  must  be  within  the  peculiar  scope  of  a  lawyer's   not'piiVi'- 
profession.^     A  lawyer,  for  instance,  may  be  required    ^°^'^' 
to  identify   his  client;^  to  prove  his  client's  handwriting;^  to 
declare   whether  certain  writings  are    in    his    possession,  so  as 
to  let  in  secondary  evidence,^  and  to  divulge  statements  made 

611;  Lewis  v.   Pennington,   20   L.J.  ^  Ilcaton  v.  Findlay,   12  Penn.  St. 

Ch.  670;  Follett  v.  JeHeryes,  1   Sim.  304. 

N.  S.  3,  17;  Mackenzie  v.  Yeo,  2  ^  Carpmael  v.  Powis,  1  Ph.  687; 
Curt.  866  ;  Greenough  v.  Gaskell,  1  BramwcU  f.  Lucas,  2  Bar.  &  C.  745; 
Myl.  &  K.  104;  Crosby  v.  Berger,  11  Brown  v.  Foster,  1  IL  &  N.  736;  R.  v. 
Paige,  377;  Chillicotlie  R.  R.  v.  Janie-  Leverson,  11  Cox  C.  C.  152;  Good- 
son,  48  111.  281;  Howard  r.  Copley,  all  v.  Little,  20  L.  J.  Cli.  132;  1  Sim. 
10  La.  An.  504.  See,  as  giving  lim-  N.  S.  135;  Wheatley  v.  Williams,  1 
its  to  the  above,  Davies  u.  Waters,  9  M.  &  W.  533;  Desborough  v.  Raw- 
M.  &  W.  C08;  People  v.  Atkinson,  40  lins,  3  Myl.  &  Craig,  515;  Jones  v. 
Cal.  284.  Goodrich,  5  Moo.  P.  C.  16;  Smith  v. 

1  Duffin   V.    Smith,    Pea.    R.    108;  Daniell,  L.   R.   18  E^.  619;  Clark  v. 
Rochester  v.  Bk.  5  How.  Pr.  259.  Richards,  3  E.  D.  Smith,  89  ;  Picrson 

2  Brown  v.  Foster,  1  H.  &  N.  736.  v.  Steortz,  Morris  (Iowa),  136. 

8  Bramwell   v.    Lucas,  2  B.    &    C.  '  Studdy  r.  Sanders,  2  D.  &  R.  347; 

743;  Desborough  v.  Rawlins,  3  Myl.  &  Doc  i'.  Andrews,  2  Cowp.  846. 

C.  515;  Sawyer  v.  Birchmore,   3  Myl.  »  llurd   v.  Moring,   1   C.  &  P.  372; 

&  K.  572;  Allen  y.  Harrison,    30   Vt.  Johnson  i'.  Davcrne,   19  Johns.  134; 

219.  Brown  v.  Jewett,  120  Mass.  215. 

*  Goddard   v.  Gardner,    28    Conn.  '  Ramsbotham   v.    Senior,   L.   R.  8 

172.     See    Hoy  v.   Morris,   13    Gray,  Eq.  575;  Campbell,  e.x  parte,  L.  R.  5 

519.  Ch.  Ap.  703.     See  supra,  §  585. 

563 


§  590.] 


THE  LAW   OF  EVIDENCE. 


[book  II. 


to  him  by  his  client  when  such  statements  are  simply  casual  ob- 
servations, having  nothing  to  do  with  any  legal  question  as  to 
which  the  lawyer  is  consulted. ^  It  is  now  said,  however,  that 
he  will  not  be  compelled  to  disclose  his  client's  address,^  unless 
the  client  be  a  ward  of  court,^  or  in  bankruptcy.*  But  the  con- 
dition of  the  client's  mind,  when  he  consults  his  lawyer,  when 
such  condition  would  be  patent  to  all  observers,  is  not  privi- 
leged ;  ^  nor  is  the  question  whether  the  lawyer  was  retained  by 
the  client,  and  in  what  capacity.^ 

§  690.  Nor  does  the  privilege  protect  parties  seeking  for 
information  or  advice  as  to  prospective  infractions  of 
law.  Communications  of  an  intended  offence  of  this 
class  counsel  are  bound  to  disclose.^  The  protection  of 
privilege  has  therefore  been  withheld  from  communica- 
tions to  a  lawyer  for  the  purpose  of  raising  money  on 
forged  securities.^     It  is  scarcely  necessary  to  add  that  when  the 


Privilege 
does  not 
extend  to 
communi- 
cations in 
view  of 
breaking 
the  law. 


1  Gillard  v.  Bates,  6  M.  &  W.  547; 
Annesley  v.  Anglesea,  11  How.  St.  Tr. 
1220. 

2  Heatli  V.  Creelock,  L.  R.  15  Eq. 
257;  though  see  Studdy  v.  Sanders,  2 
D.  &  R.  347. 

8  Ramsbotham  v.  Senior,  L.  R.  8 
Eq.  575. 

*  Cathcart,  in  re,  L.  R.  5  Ch.  703. 

6  Daniel  v.  Daniel,  39  Penn.  St. 
191. 

«  Beckwith  v.  Benner,  6  C.  &  P. 
681;  Heaton  v.  Findlay,  12  Penn.  St. 
304  ;  though  see  contra,  as  to  nature 
of  relationship.  Chirac  v.  Reinicker, 
11  Wheat.  280;  S.  C.  2  Pet.  613. 

'  R.  V.  Avery,  8  C.  &  P.  596;  R.  v. 
Farley,  2  C.  &  K.  313;  S.  C.  1  Den. 
C.  C.  197;  R.  V.  Brewer,  6  C.  &  P. 
363  ;  Follett  v.  Jefferyes,  1  Sim.  N.  S. 
17;  Charlton  v.  Coombes,  4  Giif.  372; 
People  V.  Blakeley,  4  Parker  C.  R. 
176;  Bank  v.  Mersereau,  3  Barb.  Ch. 
598;  People  v.  Sheriff,  29  Barb.  622; 
Graham  v.  People,  63  Barb.  483. 

*  R.  V.  Farley,  ut  supra. 

"  There  is  no  confidence  as  to  the 
disclosure   of    iniquity.     You  cannot 

564 


make  me  the  confidant  of  a  crime  or 
a  fraud,  and  be  entitled  to  close  up 
my  lips  upon  any  secret  which  you 
have  the  audacity  to  disclose  to  me 
relating  to  any  fraudulent  intention 
on  your  part ;  such  a  confidence  can- 
not exist."  Lord  Hatherley,  in  the 
case  of  Garteside  v.  Outram,  26  L.  J. 
Ch.  113,  114,  citing  Annesley  v.  Earl 
of  Anglesea,  17  How.  State  Trials, 
1139;  Mornington  v.  Morninglon,  2 
John.  &  H.  697,  703 ;  Gore  v.  Bowser, 
5  D.  G.  &  Sm.  30 ;  Goodman  v.  Hol- 
royd,  15  C.  B.  N.  S.  839;  Blight  v. 
Goodliffe,  18  C.  B.  N.  S.  757;  Char- 
tered Bank  of  India  v.  Rich,  32  L.  J. 
Q.  B.  300,  306 ;  R.  v.  Jones,  1  Den. 
C.  C.  166;  B..V.  Farley,  1  Den.  C.  C. 
197.  A  mere  charge  is  insufficient. 
Crisp  V.  Platel,  8  Beav.  62;  Charlton 
V.  Coombes,  4  Giff.  372.  The  court 
will  look  at  the  circumstances  of  each 
case.  Bassford  v.  Blakesley,  6  Beav. 
131.  See,  also.  Doe  d.  Shellard  v. 
Harris,  5  Car.  &  P.  594  ;  Levy  v. 
Pope,  Moo.  &  M.  410.  Where  there 
is  fraud,  there  is  no  privilege.  Reynell 
V.    Sprye,    10   Beav.   51 ;    Follett  v. 


CHAP.  VIII.]  PROFESSIONAL  PRIVILEGE.  [§  592. 

lawyer  connives  at  the  illegal  purpose,  he  so  far  loses  his  profes- 
sional character  as  to  preclude  him  personally  from  claiming  any 
privilege.  "  Where  a  solicitor  is  party  to  a  fraud,  no  privilege 
attaches  to  the  communications  with  him  on  the  subject,  because 
the  contriving  of  a  fraud  is  no  part  of  his  duty  as  a  solicitor."  ^ 
A  lawyer,  however,  cannot  be  asked,  and  certainly  cannot  be 
compelled  to  answer,  whether  his  advice  to  his  client  did  not 
involve  an  illegal  purpose.^ 

§  591.  The  privilege,  it  should  also  be  remembered,  is  meant 
to   protect   the  living  in  their  business  relations,  and    pri^^ji^™ 
cannot  be  invoked  Avhen  the  question  arises  as  to  the   '^""^^  ""^^ 
intention  of  a  deceased  person  in  respect  to  the  disposi-   testamen- 
tion  of  his  estate.     "  The  next  important  limitation,"   munica- 
says  Mr.  Hare,^  of  the  doctrine,  is  pointed  out  by  Lord     '°"^' 
Justice  Turner.     He  said,  that  "  where  the  rights  and  interests 
of  clients,  and  those  claiming  under  them,  come  in  conflict  with 
the  rights  and  interests  of  third  persons,  there  can  be  no  diffi- 
culty in   applying  the  rule."     But  there  is  a  difficulty  where 
cases  of  testamentary  disposition  arise.     "  The  disclosure  in  such 
cases  can  affect  no  right  or  interest  of  tlie  client.     The  apprehen- 
sion of  it  can  present  no  impediment  to  the  full  statement  of  his 
case  to  his  solicitor,  and  the  disclosures,  when  made,  can  expose 
the  court  to  no  greater  difficulty  than  presents  itself  in  case3 
where  the  views  and  intentions  of  persons,  or  of  the  objects  for 
which  the  disposition  is  made,  are  unknown.     In  the  cases  of 
testamentary  dispositions,  the  very  foundation  of  the  rule  seems 
to  be  wanting,  and  in  the  absence,  therefore,  of  any  illegal  pur- 
pose being  entertained  by  the  testator,  there  does   not   appear 
to  be  any  ground  for  applying  it."  * 

§  592.  When  the  client  obtains  the  lawyer's  signature  as  an 
attesting  witness  to   an    instrument   executed    by   the    ij»wyer 
client,  the  lawyer  is  compelled  to  prove  his  signature,    i"ll'„.«"iut- 
hjs  privilege  in  this  respect  as  a  professional  man  yield-   Sfj'g'"',^','^^'' 
ing  to  his  duties  as  a  witness.^     But  the  surrender  is   privilege. 

Jeffcryes,  1  Sim.  N.  S.  1.     The  topic         ^  Doe  v.  Harris,  5  C.  &  V.  594. 
is  ably  discussed  in  Hare  on  J)isc.  (2d         «  Discovery,  2d  edition,  1G2. 
ed.)  1G3.     See,  also,  People  v.  Blake-         *  Russell  r.  Jackson,  9  Hare,  387. 
ly,  4  Parker  C.  R.  176.  ^  Sand  ford    v.    Remin;;ton,   2    Vcs. 

1  Turner,  V.  C,  in  Russell  v.  Jack-  ISO  ;  Doc  v.  Andrews,  2  Cowp.  84  5; 

son,  9  Hare,  392.  Robson  i;.  Kemp,  5  Esp.  53. 

665 


§  593.]  THE  LAW   OF   EVIDENCE.  [BOOK  11. 

limited  to  the  mere  act  of  attestation  ;  and  an  attorney,  who  has 
signed  as  attesting  witness  a  deed  whose  hona  fides  is  contested, 
though  he  may  be  asked  as  to  the  attestation,  is  privileged  as  to 
any  information  derived  by  him  from  his  client  as  to  the  concoc- 
tion of  the  instrument.^ 

§  593.  Deviating  in  this  respect  from  the  Roman  law,  the  Eng- 
Privilege  lish  commou  law  has  declined  to  extend  the  privilege  of 
te°!ded'to  inviolability  to  any  communications  except  those  with 
other  busi-  professional  men  advising  as  to  the  law.  Thus  it  has 
agents.  been  held  that  disclosure  of  confidential  communications 
will  be  exacted  from  bankers,^  from  clerks,^  and  even  from  med- 
ical men, 4  though  as  to  the  latter  remedial  statutes  have  been 
passed.^  In  England,  however,  for  reasons  connected  with  the 
complications  arising  from  the  old  system  of  the  non-recording  of 
titles,  trustees  cannot  be  compelled  to  produce  the  deeds  of  their 
clients.*^  The  better  opinion  is  that  agents,  not  lawyers,  em- 
ployed by  a  party  to  collect  testimony  in  preparation  for  a 
trial,  are  privileged."  It  would  seem  extraordinary,  in  view  of 
the  scope  of  the  cases  just  cited,  if  one  party,  in  advance  of  a 
trial,  could  compel  the  other  party  in  this  way  to  disclose  all  the 
secrets  of  his  case,  though  there  are  intimations  in  England  that 
such  agents  have  no  privilege.^  The  reports,  to  railroad  com- 
panies, of  confidential  servants,  and  of  medical  officers,  sent  to 
report  on  railway  accidents,  have,  however,  been  held  to  be  priv- 
ileged, if  they  present  a  summary  of  evidence  collected  for  the 
company  ;  though  this  privilege  is  not  regarded  as  extending  to 
cases  where  the  agents  are  employed  to  treat  with  injured  par- 
ties, and  to  make  official  returns  of  such  negotiations.^ 

1  Wheatley  i'.  Williams,  1  M.  &  W.  608;  R.  v.  Upper  Boddington,  8  D. 
533  ;  Turquant  v.  Knight,  2  M.  &  W.  &  R.  726  ;  Doe  i'.  Date,  3  Q.  B.  369  ; 
98.  Pickering   v.   Koyes,   1    Barn.   &    Cr. 

2  Loyd    V.    Freshfield,    2    C.   &  P.  263. 

325.      '  7  Preston  v.  Carr,   1  Y.   &  J.  1/5; 

8  Webb   V.  Smith,  1  C.   &   P.  337;  Ross  v.  Glbbs,  L.  R.  8  Eq.  522. 

Baker  v.  R.  R.  L.  R.  3  Q.  B.  91.  s  Glyn  v.   Caulfield,   3  Mac.  &  G. 

*  R.    V.    Gibbons,    1    C.  &   P.   97;  463;  Goodall  r.   Little,  1   Sim.  N.  S. 

Duchess  of  Kingston's  case,  20  How.  135. 

St.  Tr.  572.  9  Hare  on  Disc.  2d  ed.  152;  Baker 

6  See  Wh.  Cr.  L.  §  775  e<  seq.     See  v.  R.  R.  8  Best  &  S.  645;  Woolley  v. 

infra,  §  G06.  R.  R.,  L.  R.  4  C.  P.  602  ;  Cossey  i;.  R. 

«  Davies   v.   Waters,    9   M.    &  W.  R.,  L.  R.  5  C.  P.  146 ;  Fenner  v.  R. 
566 


CHAP.  VIII.] 


PRIVILEGE   OF   TELEGRAMS. 


[§  595. 


§  594.  "  The  communications,"  says  Mr.  Hare  in  his  work  on 
Discovery,!  "  between  a  party,  or  his  legal  adviser,  and  Commimi- 
witnesses,  are  also  privileged.  There  is,  in  those  cases,  t^^.gelj"^^" 
the  same  necessity  for  protection ;  otherwise,  as  Lord    PT'J'  ^^^ 

,  .  .  witnesses 

Langdale  remarked,  it  would  be  impossible  for  a  party  privileged, 
to  write  a  letter  for  the  purpose  of  obtaining  information  on  the 
subject  of  a  suit,  without  incurring  the  liability  of  having  the 
materials  of  his  defence  disclosed  to  the  adverse  party."  ^  Com- 
munications between  the  parties,  with  regard  to  the  preparation 
of  evidence,  are  in  like  manner  privileged.^ 

§  595.  It  was  at  one  time  urged  that  telegraphic  operators 
could  no  more  be  compelled  to  disclose  the  contents  of   ,j, , 
telegrams  than  could  postmasters  be  compelled  to  dis-   giapUic 

11  c   -I  n-ii  •        •  1  comnuini- 

close  the  contents  oi  letters.     This  view,  however,  has   cm  ions  not 
not  found  acceptance,  and  telegraphic  agents  and  oper-   ^'"^ '  ^^^ 
ators  (if  there  be  no  statute  to  the  contrary)  are  now  compelled 
to  produce  in  court  the   originals  of  telegrams,  or,  if  such  orig- 
inals be  lost,  to  give  secondary  evidence  of  their  contents.'' 

R.,  L.  R.  7  Q.  B.  767;  Skinner  v.  R.  to  the  contents  of  a  telegraphic  mcs- 

R.,  L.  R.  9  Exc.  298.  sage. 

1  Hare  on  Disc.  2d  ed.  187G,  151.  "  The  case  finds  the  message  matc- 

2  Preston  v.  Carr,  1  Y.  &  J.  175;  rial  to  the  issue.  A  verbal  message, 
Ross  V.  Gibbs,  L.  R.  8  Eq.  522  ;  Cur-  communicated  to  the  prisoner,  would 
ling  V.  Perring,  2  Myl.  &  K.  380  ;  be  admissible,  and  the  party  commu- 
Storey  v.  Lenno.x,  1  Myl.  &  C.  525  ;  nicating  it  would  be  compelled  state  it. 
Llewellyn  v.  Baddeley,  1  Hare,  527;  So  a  written  message,  or  its  contents, 
Lafone  v.  Falkland  Llands  Co.  4  Kay  after  due  notice  to  produce  the  origi- 
&  J.  34;  Gandee  v.  Stansfield,  4  De  nal,  and  a  failure  of  its  production  by 
G.  &  J.  1 ;  Daw  v.  Eley,  2  Hem.  &  M.  the  party  notified,  would  be  received 
725;  Phillips  c.  Routh,  L.  R.  7  C.  P.  in  evidence.  The  mode  of  transmis- 
289  ;  Wilson  v.  R.  R.,  L.  R.  14  Eq.  sion  to  the  person  delivering  the  mcs- 
477  ;  Hamilton  v.  Nott,  L.  R.  16  Eq.  sage,  whether  by  telegraph  or  olhcr- 
112.  wise,  has  nothing  to  do  with  the  mat- 

8  Hare  on  Disc.  152,  citing  Allan  v.  ter.     The  important  impiiry  n-lates  to 

Royden,  43  L.  J.  (C.  P.)  20G;  though  its  materiality. 

Bee    Rayner    v.   Ritson,   6    Best  &  S.  "Nor  can   telegraphic  comnuiniea- 

888  ;  Culmau   v.  Truman,   3  Hurl.  &  tions  be  deemed  any  more  conlideiUial 

JJ.  871.  than  any  other  conuuunications.    Tel- 

*  See    State   v.   Litchfield,  58   Uc.  egraphic  communications   are    not  to 

267  ;  Henisler  v.  Freedman,  2  Parsons  be  protected  to  aid  the  robber  or  as- 

Scl.  Ca.  274.     And  see  infra,  §  Gl 7.  sassin   in   the  consummation  of  their 

"  The  main  question  presented  for  felonies,  or  to  facilitate   their  escape 

our  determination  is,  whether  a  tele-  after  the  crime   has  been  committed, 

graphic   operator  is  bound  to  testify  No  communication  should  be  excluded, 

667 


§  596.]  THE  LAW   OF  EVIDENCE.  [BOOK  II. 

§  596.  Whether  a  priest  is  privileged  as  to  the  confidences  of 
Priests  not  the  confessional,  is  a  question  that  has  been  much  agi- 
as'tocon-  tated.  On  the  one  side  it  is  maintained  that  the  office 
comnion  ^^  °^  ^  pastor  is  at  least  as  important  to  the  community 
law.  as  that  of  a  lawyer,  and  that  to  the  one  office  the  giv- 

ing and  receiving  of  confidential  communications  is  as  essential 
as  it  is  to  the  other.  It  is  further  urged  that  by  a  religious  com- 
munion, v^hose  members  include  a  large  proportion  of  the  popu- 
lation, confession  is  absolutely  enjoined  ;  and  that  it  would  be 
cruel  and  intolerant  to  use  a  religious  duty  on  the  part  of  a  large 
section  of  the  community  as  an  engine  for  the  extortion  of 
secrets  for  the  purposes  of  litigation.  To  issue  subpoenas,  for 
instance,  so  it  is  argued,  and  bring  into  the  office  of  a  com- 
mitting magistrate  all  the  Roman  Catholic  priests  in  a  neigh- 
borhood, and  then  to  force  them  to  tell  all  they  have  learned  in 
the  confessional  as  to  any  illegal  acts,  past  or  present,  would  be 
to  unnecessarily  plunge  the  state  into  a  w^ar  with  an  ancient  and 
powerful  communion,  —  a  war  in  which  that  communion  could 
yield  nothing,  leaving  only  two  alternatives,  equally  deplorable : 
its  triumph  over  the  state,  or  the  general  imprisonment  of  its 
priests  and  the  suppression  of  its  worship.  On  the  other  hand, 
it  is  insisted  that  the  giving  of  confidences  under  the  seal  of  the 
confessional  is  not  an  essential  to  the  pastoral  office,  but  that  the 

no  individual  should  be  exempt  from  cause  of  justice  renders  their  produc- 
inquiry,  when  the  communication,  or  tion  necessary.  They  cannot  wish 
the  answer  to  the  inquiry,  would  be  of  their  servants  should,  however  inno- 
importance  in  the  conviction  of  crime  cently,  cooperate  in  the  commission  of 
or  the  acquittal  of  innocence,  except  crime,  and  decline  to  cooperate  in  its 
when  such  exclusion  is  required  by  detection  and  punishment,  and  thus 
some  grave  principle  of  pubhc  policy,  become  its  accomplices.  The  interests 
The  honest  man  asks  for  no  confiden-  of  the  public  demand  that  resort  should 
tial  communications,  for  the  withhold-  be  had  to  all  available  testimony, 
hig  the  same  cannot  benefit  him.  The  which  may  lead  to  the  detection  and 
criminal  has  no  right  to  demand  ex-  punishment  of  crime,  and  to  the  pro- 
elusion  of  evidence  because  it  would  tection  of  innocence.  The  telegraph 
establish  his  guilt.  State  v.  Litchfield,  operator,  as  such,  can  claim  no  ex- 
58  Me.  269.  emption  from  interrogation.  Like 
"  The  telegraphic  companies  can-  other  witnesses,  he  is  bound  to  an- 
not  rightfully  claim  that  the  messages  swer  all  inquiries  material  to  the  is- 
of  rogues  and  criminals,  which  they  sue."  Appleton,  C.  J.,  State  y.  Litch- 
may  innocently  or  ignorantly  trans-  field,  58  Me.  269.  See,  also,  U.  S.  v. 
mit,  should  be  withheld,  whenever  the  Babcock,  3  Dillon,  566. 

568 


CHAP.  VIII.]  PRIVILEGE   OF   CLERGYMEN.  [§  597. 

pastoral  office  can  be  carried  on  far  more  efficiently  and  safely 
without  it  than  with  it.  To  confess  and  be  absolved,  so  it  is  in- 
sisted, relieves  the  conscience  from  the  terror  of  guilt,  and  ena- 
bles the  guilty  man  to  spring  forward  on  a  new  line  of  law- 
breaking  with  purposes  at  once  hardened  by  past  transgressions, 
and  disembarrassed  bv  the  feeling  that  these  transgressions  are 
no  longer  counted  against  him.  If  the  confessional,  therefore, 
be  in  itself  prejudicial  to  the  morals  of  the  community,  why 
should  the  priest  be  exempted  from  the  general  rule  that  a  wit- 
ness, when  duly  brought  into  court,  is  to  be  compelled  to  tell  all 
he  knows  about  the  issue  ?  At  all  events,  there  is  nothing  in  the 
office  of  a  priest  which  should  relieve  him  from  the  civic  duties 
of  laymen  ;  and  among  these  duties  that  of  bearing  testimony  in 
all  matters  in  a  court  of  justice  is  among  the  chief.  A  brother 
is  compelled  to  disclose  the  confidences  of  a  brother  ;  a  father  is 
compelled  to  disclose  the  confidences  of  a  child  ;  there  is  nothing 
in  a  priest's  position  more  sacred  than  that  of  brother  to  brother 
or  of  father  to  child.  The  analogy  of  the  lawyer,  it  is  added,  is 
not  applicable,  since  lawyers  are  compelled  to  disclose  all  com- 
munications which  relate  to  proposed  illegal  acts,  and,  what  is 
more,  a  lawyer  is  a  necessary  officer  of  the  courts,  which  a  cler- 
gyman is  not.  These  and  other  reasons  have  led  to  a  refusal, 
by  the  English  legislature  and  courts,  to  adopt  the  mediaeval 
canons,  privileging  communications  made  in  the  confessional 
to  priests.  The  English  ecclesiastical  law,  indeed,  invites  the 
penitent  to  confess  his  sins,  "  for  the  unburdening  of  his  con- 
science and  to  receive  spiritual  consolation  and  ease  of  mind ;  " 
but  the  minister,  to  whom  confession  is  made,  is  not  excused 
from  testifying  in  a  court  of  justice,  but  merely  enjoined,  "  un- 
der pain  of  irregularity,"  not  to  reveal  what  is  confessed.^  This 
has  been  construed  to  leave  him  liable  to  the  prescriptiDns  of  the 
common  law,  which  makes  in  this  respect  no  distinction  between 
clergyman  and  layman.^ 

§  597.  To  Roman  Catholic  priests  this  rule  has  been  expressly 
applied  both  in  England  and  the  United  States,  and  it  has 
been  held  that  priests  are  not  privileged  in  this  relation.^     At 

1  Const.  &  Can.  I  J.  1.  Can.  cxiii.;  "  Wilson  r.  Ilastall.  1  T.  K.  T.-).-}  ; 
2  Gibs.  Cod.  p.  9G3.  Butler  v.  Moore,  M'Nally's  Kv.  253; 

2  R.  V.  Gilliam,  1  Moo.  C.  C.  188.        Anon.   2    Skin.  404  ;    Du   Barrcc   v. 

669 


§  597.]  THE  LAW   OF  EVIDENCE.  [BOOK  II. 

the  same  time,  prosecuting  officers,  as  representing  the  state, 
properly  slirink  from  calling  upon  priests  to  disclose  confessions 
as  evidence  against  parties  on  trial  for  crimes  ;  and  eminent 
judges  have  gone  a  great  way  in  encouraging  this  reluctance. 
"  I,  for  one,"  so  Best,  J.,  is  reported  to  have  said,  "  will  never 
compel  a  clergyman  to  disclose  communications  made  to  him  by 
a  prisoner ;  but  if  he  chooses  to  disclose  them,  I  will  receive 
them  in  evidence."  ^  So  it  was  declared  by  Alderson,  B.,  in  a 
case  where  it  appeared  that  a  chaplain  in  a  work-house  had 
frequent  conversations,  in  his  pastoral  capacity,  with  the  in- 
mates, that  it  was  better  that  the  chaplain  should  not  be  called 
as  a  witness  to  prove  confessions  so  received  by  him.^  The  same 
sentiment  has  led  to  a  statute  in  New  York,  providing  that 
"  no  minister  of  the  gospel,  or  priest  of  any  denomination  what- 
soever, shall  be  allowed  to  disclose  any  confessions  made  to  him 
in  his  professional  character,  in  the  course  of  discipline  enjoined 
by  the  rule  or  practice  of  such  denomination."  ^  Similar  stat- 
utes have  been  enacted  in  other  states.'*  Under  these  statutes, 
however,  a  communication,  to  be  privileged,  must  be  made  in 
the  course  of  religious  discipline.^ 

Livette,  Peake's  Cas.  77;  R.  v.  Hay,  2  restitution  of  it  to  the  owner,  and  had 

F.  &  F.  4  ;  Com.  v.  Drake,  15  Mass.  subsequently  handed   it  to  a  police- 

161  ;  Simon  v.  Gratz,  2  Penn.  R.  417;  man.     Upon  the  trial  of  a  party  for 

State  j;.  Bostick,  4  Harr.  (Del.)  564.  stealing  the  watch,  the  Roman  Catho- 

1  Broad  v.  Pitt,  3  C.  &  P.  519.  lie  priest  was  asked  by  Mr.  Justice 

^  R.  V.  Griffin,  6  Cox  C.  C.  219.  Hill    from    whom    he    received     the 

3  2  Rev.  Stat.  406,  §  72.  watch.     The  reverend  gentleman  re- 

*  See  Whart.  Cr.  Law,  §  775.  fused  to  answer  the  question,  and  was 

*  People  V.  Gates,  13  Wend.  323.  thereupon  committed  for  contempt  of 
See  2  Rogers's  Rec.  79.  See,  also,  court.  Mr.  Bowyer  thought  the  case 
Forsyth's  History  of  Lawyers,  254  ;  a  mistaken,  and  very  oppressive  one, 
Joy  on  Confes.  49-58  ;  and  closing  re-  and  that,  by  the  old  common  law,  the 
marks  of  Field,  J.,  in  Totten  v.  U.  S.,  seal  of  confession  constituted  a  priv- 
quoted  infra,  §  604.  ileged  communication.     He  wished  to 

R.  V.  Hay,  2  F.  &  F.  4,  above  no-  ask  if    the   reverend  gentleman   had 

ticed,  led  to  the  following  discussion  been  set  at  libertj',  and  if  not,  whether 

in  the  house  of  commons :  —  the  government  would  take  steps  that 

"  Mr.  Bowyer  wished  to  ask  a  ques-  he  might  be  immediately  released, 
tion  regarding  the  committal  of  a  Ro-         "  Sir  G.  C.  Lewis  said  his  informa- 

man  Catholic  priest  at  Durham.  tion  differed  from   that  of  the  honor- 

"  It  appeared  that  the  reverend  gen-  able  gentleman  with  regard  to  the  law 

tleman  had  received  a  watch,  in  con-  of  England.     He  believed  it  would  be 

fession,  in  order  that  he  might  make  a  found  that  while  any  communication 

670 


CHAP.  VIII.]  PRIVILEGE   OF   CLERGYMEN,  ETC. 


[§  599. 


§  598.  Ecclesiastics  are  by  the  Roman  common  law  not  re- 
quired to  testify  as  to  what  was  communicated  to  them  under 
the  seal  of  the  confessional.  To  this  rule,  however,  the  follow- 
ing exceptions  have  been  made  :  — 

1.  When  the  disclosure  is  required  by  the  policy  of  the  state  : 

2.  When  an  innocent  person  is  charged  with  a  crime,  convic- 
tion for  which  he  can  only  escape  by  a  disclosure  of  facts  given 
in  the  confessional : 

3.  When  the  clergyman  receiving  the  confession  is  authorized 
to  testify  by  the  person  confessing  : 

4.  When  disclosure  is  necessary  in  order  to  prevent  an  im- 
pending crime. ^ 

§  599.  Arbitrations  are  regarded  with  favor,  as  amicable  and 

efficient  methods  of  terminating  litigation  which  would    Arbitrators 

otherwise  be  expensive  and  protracted  ;  but  ai'bitrations   comiK-iied 

would  cease  to  be  amicable  and  efficient  if  arbitrators   *?  ^'^', 

close  tlie 

could  be  brouorht  into    court,   and  be  examined  as  to   pn-uiKU  of 

...  .    .  *'>eir  judg- 

the  reasons  of  their  decisions,  so  that  these  decisions  ments. 
could  be  overhauled.  It  is  not  permissible,  therefore,  to  examine 
an  arbitrator  as  to  the  reasons  which  led  him  to  particular  conclu- 
sions, for  this  would  be  collaterally  to  review  his  acts  ;  ^  nor  to 
prove  b}^  him  his  own  misconduct.^  As  to  matters  of  fact  com- 
ing to  the  knowlege  of  arbitrators,  there  is  no  reason  why  they 
should  not  be  examined.     To  this  result  there  is  a  concurrence  of 


between  a  counsel,  solicitor,  or  attor- 
ney, with  a  client,  respecting  a  suit  in 
wliicli  the  latter  was  engaged,  was  a 
privileged  communication;  with  regard 
to  a  clergyman  of  any  denomination, 
or  a  physician,  no  such  privilege  ex- 
isted. He,  therefore,  contended  the 
learned  judge  had  not  gone  beyond 
the  law.  In  fact,  the  question  was 
pressed  by  counsel,  and  the  court  had 
no  option  but  to  commit  the  witness 
under  the  circumstances.  lie  be- 
lieved, however,  that  the  reverend 
gentleman  only  remained  in  custody  a 
few  minutes,  and  liad  been  discharged 
in  tliL'  course  of  the  day. 

"  ;Mr.  Ingham  defended  the  course 
pursued   by    the   learned   judge,  and 


fully  agreed  with  the  right  honorable 
gentleman,  the  home  secretary,  in  his 
interpretation  of  the  law. 

"  Sir  F.  Kelly  also  corrobnrate(l  the 
statement  as  made  by  the  right  honor- 
able gentleman." 

See,  in  reply  to  this,  an  interesting 
work  bv  Mr.  Baddely,  on  tlie  I'rivi- 
Icge  of  Religious  Confession,  London, 
18G5.  And  see  Stephen's  Kv.  171, 
and  Best's  Ev.  §§  58.3-4,  where  tho 
inference  is  that  the  privilege,  if  it 
exists  at  all,  belongs  to  all  clergymen. 

1  See  Weiske,  Uechtslexicon,  xv. 
259. 

2  Johnson  i'.  Durant,  1  C.  &  P. 
327;  Anon.  3  Atk.  CW. 

8  Claycomb  v.  Butler,  30  111.  100. 

671 


§  599.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

high  authority.!  Thus  in  a  leading  case,^  Kelly,  C.  B.,  supposed 
the  case  of  an  arbitrator  "  empowered  to  give  compensation 
for  injury  to  a  house  numbered  'one'  in  a  particular  row  of 
houses,  and  he  professed  to  award  such  compensation,  although 
in  fact  the  whole  evidence  before  him  related  to  injury  to  a  house 
numbered  '  two,'  and  his  award  really  was  made  for  injury  to 
that  house.  Can  it  be  doubted  but  that  this  circumstance  might 
be  proved  by  the  defendant  on  the  trial  of  an  action  on  the 
award  ?  and  if  so,  I  see  no  reason  why  it  could  not  be  proved 
by  the  evidence  of  the  umpire  himself.  I  am  therefore  of  opin- 
ion that  in  this  case  the  umpire's  evidence  was  admissible."  ^  In 
the  same  case  in  the  exchequer  chamber,*  it  was  held  by  all  the 
judges  that  such  an  arbitrator  might  be  a  witness  ;  Blackburn, 
J.,  saying :  "  There  is  no  case  or  authority  that  I  can  find 
that  says  that  an  umpire  or  arbitrator  is  either  incompetent  as 
a  witness  or  privileged  from  giving  testimony  as  to  any  mat- 
ter material  to  the  issue.  Of  course  any  attempt  to  annoy  an 
arbitrator  by  asking  questions  tending  to  show  that  he  had  mis- 
taken the  law,  or  found  a  verdict  against  the  weight  of  evidence, 
should  be  at  once  checked,  for  these  matters  are  irrelevant.  But 
where  the  question  is,  whether  he  did  or  did  not  entertain  a  ques- 
tion over  which  he  had  no  jurisdiction,  the  matter  is  relevant, 
and  nobody  can  be  better  qualified  to  give  testimony  on  that 
matter  than  the  umpire."^  Mellor,  J.,  remarked,  that  "it  would 
be  unfortunate  if  there  were  no  means  of  ascertaining  whether  or 
not  an  arbitrator  or  umpire,  in  such  a  case,  had  really  confined 
himself  within  the  true  limits  of  the  authority  conferred  upon 
him."  "  And  it  must  at  least  occasionally  happen,  that  with- 
out the  evidence  of  the  arbitrator  there  would  be  no  means  of 
arriving  at  the  fact."  ^  The  report  of  the  judgment  of  the  case 
in  the  house  of  lords,"  contains  the  result  of  the  opinions  of  the 
judges  on  this  point :  "  That  the  umpire  was  admissible  as  a  wit- 
ness was,  without  a  single  exception,  the  opinion  of  all  the  judges 

^  See     Woodbury    v.    Northy,     3  reasons;  and  his  opinion  to  the  con- 

Greenl.  85;  Pulliam  v.  Pensoneau,  33  trary  effect  is  denied.     L.  R.  5  H.  L. 

III.  375;  Mayor  v.  Butler,  1  Barb,  325.  457. 

2  Buccleufrh  V.  Metropolitan  Board         *  L.  R.  5  Ex.  221. 
of  Works,  L.  R.  3  Ex.  306,  324.  ^  ibid.  234. 

8  Bramwell,    B.,    who   is   reported         ^  Ibid.  246. 
to  have   thought   otherwise,  gave  no        '  L.  R.  5  H.  L.  418,  457. 

672 


CHAP.  VIII.]  PRIVILEGE  :    JURORS,   JUDGES.  [§  600. 

who  have  considered  the  question  in  this  case."  Lord  Chelms- 
ford referred  to  several  cases  on  the  subject,^  and  Cleasby,  B., 
said  that  it  was  "  every  day  practice  for  the  arbitrator  to  make 
an  affidavit  where  a  question  arises  as  to  what  took  place  before 
him,  and  I  have  known  him  to  be  examined  as  a  witness  without 
objection."  2  The  judgment  of  Lord  Cairns,  so  remarks  Mr. 
Hare,  is  very  clear  upon  the  point  in  issue,  whether  as  to  matters 
of  fact  the  evidence  of  an  arbitrator  is  properly  admissible.  But 
he  does  not  touch  the  other  question  raised  by  the  lord  justice 
that  of  matters  of  law,^  which  is  a  point  upon  which  the  judg- 
ment of  the  latter  and  the  dictum  of  Blackburn,  J.,  differ.  In 
prior  cases  it  "  was  determined  that  an  arbitrator  cannot  be 
made  a  party  to  a  bill  to  set  aside  an  award  ]  *  and  that  he  is  not 
bound  to  answer  as  to  his  motives  for  making  an  award,  though 
he  must  support  a  plea  of  arbitrator  with  evidence  of  his  good 
conduct."^ 

§  600.  The  privilege  of  inviolability  is  necessarily  extended  to 
the  consultations  of  judges  ;  though  they  may  be  exam-  ^^^ 
ined,  as  we  have  seen,  as  to  what  took  place  before  J^^s^^- 
them  on  trial,  in  order  to  identify  the  case,  or  prove  the  testi- 
mony of  a  witness.^  The  same  privilege  extends  to  justices  of 
the  peace,  with  the  same  liability  to  be  examined  as  to  the  facts 
of  the  trial.^  A  presiding  judge  cannot  be  sworn  as  a  witness 
in  a  case  before  him.^     But  where  the  decision  of  a  judge  of 

1  Ibid.  428.  mistake    in    point   of   legal   principle 

2  L.  11.  5  11.  L.  4,  33.  going  directly  to  the  basis  on  which 
8  Ibid.  4G2.  the  award  is  founded,  —  these  are  sub- 
*  Steward  v.  E.  L.  Co.  2  Vern.  38.0  ;  jects  on  which  he  ought  to  be  exam- 

except  where  fraud  has  been  charged,  ined."     Giffard,'  L.   J.,  In   re   Dare 

Hare  on  Disc.  50.  Valley  Ry.  Co.  L.  R.  G  Eq.  429. 

6  Hare  on  Discovery,  50,  181-2.  «  Hare  on  Disc.  (2d  ed.  187G)  182; 

"  I  can  see  no  reason  why  the  ar-  Jackson  v.  Humphrey,    1  Johns.    R. 

bitrator    should    not   be   just  as  well  49'8;  Hey  ward,  in  re,    1    Sandf.   701. 

called  as  a  witness  as  any  body  else.  See    Welcome  i-.  Bafclieldi-r,  23  Me. 

provided  the  points  as  to  which    he  85;  and  see  supra,  §  ISO;  infra, §§  785, 

is  called  as  a  witness  are  proper  points  986.     In  R.  v.  Gazard,  8  C  &  1.595, 

upon  which  to  examine  him.     If  there  it  was  doubted  whether  even  as  to  the 

is  a  mistake  in  point  of  swayed  ma«er,  —  facts  of   a  case   before   him,  a  judge 

that  is,  if  a  particular  thing  is  referred  could  be  examined, 
to  an  arbitrator,  and  he  has  mistaken         '  Iligliberger    r.    Stifller,    21     Md. 

the  subject  matter  on  which  lie  ought  338  ;  Taylor  v.  Larkin.  12  Mo.  103. 
to  make  his  award;  or  if  there  is  a        *  People  i-.  Miller,   2   I'ark.  C.  R. 

673 


§  601.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


probate  is  appealed  from,  on  the  gx-ound  that  he  was  interested  in 
the  estate  whicli  his  decision  settled,  it  has  been  held  in  Massa- 
chusetts that  he  is  a  competent  witness  on  appeal  to  prove  that 
he  was  not  interested.^ 

§  601.  It  was  at  one  time  supposed  that  a  gi-and  juror  was 
Jurors  required  by  his  oath  of  secrecy  to  be  silent  as  to  what 

to  pr^ve"'  transpired  in  the  grand  jury  room  ;  ^  but  it  is  now  held 
what  took     ^\y^^j^  s^^cIj   evidence,  wherever  it  is  material  to  explain 

place  be-  _  .  ^ 

tore  them,  what  was  the  issue  before  the  grand  jury,  or  what  was 
the  testimony  of  particular  witnesses,  will  be  required.^  This  is 
the  statutory  rule  in  Massachusetts  and  New  York.^  A  grand 
juror's  testimony,  however,  will  not  be  received  to  impeach  the 
findins:  of  his  fellows,  or  even  to  show  what  was  the  vote  on  the 
finding.^     So  a  petit  juror  is  not  ordinarily  permitted  to  disclose 


197.  See  Morss  v.  Morss,  11  Barb. 
510;  McMillea  v.  Andrews,  10  Oh. 
St.  112;  Ross  t;.  Buhler,  2  Mart.  (N. 
S.)  313;  R.  V.  Anderson,  2  How.  St. 
874. 

1  Sigourncy  v.  Sibley,  21  Pick.  101. 

It  has  been  ruled  in  England,  that 
if  a  judge  be  sitting  with  others  he 
may  then  be  sworn,  and  give  evidence. 
Trial  of  the  Regicides,  Kel.  12;  5 
How.  St.  Tr.  1181,  n.  S.  C.  But  in 
such  case,  the  proper  course  seems  to 
be  for  the  judge  who  has  thus  become 
a  witness  to  leave  the  bench,  and  take 
no  further  judicial  part  in  the  trial. 

Mr.  Taylor  notices  in  this  relation 
that  on  several  occasions  when  trials 
have  been  instituted  before  the  high 
court  of  parliament,  peers,  who  have 
been  examined  as  witnesses,  have, 
nevertheless,  taken  part  in  the  verdict 
subsequently  pronounced.  7  How.  St. 
Tr.  1384,  1458,  1552;  16  How.  St. 
Tr.  1252,1391.  He  argues,  however, 
that  these  cases  are  not  inconsistent 
with  the  law  as  above  stated,  since  in 
trials  before  the  house  of  lords,  the 
peers  must  be  regarded  at  least  as 
much  in  the  light  of  jurors  as  of 
judges ;  and  it  has  just  been  shown 

574 


that  a  juryman  is  not  disqualified  from 
acting,  simply  by  being  called  as  a 
witness.     Taylor,  §  1244. 

2  Whart.  Cr.  Law,  §  508  ;  Imlay  v. 
Rogers,  2  Halst.  347  ;  State  v.  Baker, 
20  Mo.  338, 

3  Sykes  v.  Dunbar,  2  Selw.  N.  P. 
1059;  U.  S.  V.  Charles,  2  Cranch  C. 
C.  76;  Com.  v.  Hill,  11  Cush.  137; 
Com.  V.  Mead,  12  Gray,  167;  State  v. 
Fasset,  16  Conn.  45  7;  Huidekoper  v. 
Cotton,  3  Watts,  56;  Thomas  v.  Com. 
2  Robinson  (Va.),  795.  See  Tindle 
V.  Nichols,  20  Mo.  326;  State  v.  OlTutt, 

4  Blackf.  355;  Burnham   v.  Hatfield, 

5  Blackf.  21;  Perkins  v.  State,  4  Ind. 
222;  Granger  v.  Warrington,  3  Gil- 
man,  299;  Burdick  v.  Hunt,  43  Ind. 
384;  State  v.  Broughton,  7  Ired.  96; 
Sands  v.  Robison,  20  Miss.  704 ;  Roc- 
co  V.  State,  37  Miss.  357;  Peoples. 
Young,  31  Cal.  564;  W^hite  v.  Fox,  1 
Bibb,  369  ;  Crocker  v.  State,  1  Meigs, 
127;  Beam  v.  Link,  27  Mo.  261. 

*  See  Whart.  Cr.  Law,  §  509. 

6  R.  V.  Marsh,  6  Ad.  &  El.  236; 
McLellan  v.  Richardson,  1  Shepl.  82; 
State  V.  Fasset,  16  Conn.  457;  People 
V.  Hulburt,  4  Denio,  133  ;  Huidekoper 
V.  Cotton,  3  Watts,  56  ;  State  v.  Beebe, 


CHAP.  VIII.] 


PRIVILEGE  :   JURORS. 


[§  601. 


the  deliberations  of  the  jury  when  consulting  in  their  private 
room.i  He  is,  however,  competent  to  testify  as  to  the  issues 
actually  passed  on  by  the  jury  of  which  he  was  a  member,  when 
such  question  is  material  on  a  subsequent  trial.^ 


17  Minn.  241;  State  v.  McLeod,  1 
Hawks,  344  ;  State  v.  Baker,  20  Mo. 
338 ;   State  v.  Oxford,  30  Tex.  428. 

"  But  it  is  urged  that  the  secrets  of 
the  grand  jury  must  be  protected  — 
that  the  oath  of  the  grand  juror  pro- 
hibits their  utterance.  The  juror  is 
sworn,  the  state's  counsel,  his  fellows, 
and  his  own,  to  keep  secret.  But  the 
oath  of  the  grand  juror  does  not  pro- 
hibit his  testifying  what  was  done  be- 
fore the  grand  jury  when  the  evidence 
is  required  for  the  purposes  of  public 
justice  or  the  establishment  of  private 
rights.  Burnham  v.  Hatfield,  5  Blackf. 
21.  'It  seems  to  us,'  observes  Ruffin, 
C.  J.,  in  The  State  v.  Broughton,  7 
Iredell,  9G,  '  that  the  witness  (who  tes- 
tifies before  the  grand  jury)  has  no 
privilege  to  have  his  testimony  treated 
as  a  confidential  communication,  but 
that  he  ought  to  be  considered  as  de- 
posing under  all  the  obligations  of  an 
oath  in  judicial  proceedings,  and, 
therefore,  that  the  oath  of  the  grand 
juror  is  no  legal  or  moral  impediment 
to  his  solemn  examination  under  the 
direction  of  a  court,  as  to  evidence  be- 
fore him,  whenever  it  becomes  mate- 
rial to  the  administration  of  justice.' 

"  To  the  same  effect  was  the  de- 
cision of  the  supreme  court  of  Indiana 
in  Perkins  v.  The  State,  4  Ind.  222. 
In  Com.  V.  Hill,  11  Cush.  137,  a  mem- 
ber of  the  grand  jury  which  found  an 
indictment  was  held  to  be  a  comi)e- 
tent  witness  on  trial  to  prove  that  a 
certain  person  did  not  testify  before 
the  grand  jury.  In  Com.  t».  Mead,  12 
Gray,  167,  it  was  held  that  the  de- 
fendant, for  the  purpose  of  impeaching 
a  witness  for  the  commonwealth,  on 
the  trial  of  an  indictment,  might  prove 


that  he  testified  differently  before  the 
grand  jury.  So,  if  to  impeach  a  wit- 
ness evidence  is  offered  of  statements 
made  by  him  before  the  grand  jury, 
he  may  testify  in  rebuttal  what  those 
statements  were.  Way  v.  Butterworth, 
lOG  Mass.  75.  When  a  witness  testi- 
fies differently  in  the  trial  bufore  the 
petit  jury  from  what  he  did  before  the 
grand  jury,  the  grand  jurors  may  be 
called  to  contradict  him,  whether  his 
testimony  is  favorable  or  adverse  to 
the  prisoner.  So,  in  all  cases  when 
necessary  for  the  protection  of  the 
rights  of  parties,  whether  civil  or 
criminal  grand  jurors  may  be  wit- 
nesses. Such  seems  the  result  of  the 
most  carefully  considered  decisions  in 
this  country. 

"In  Low's  case,  4  Maine,  440,  it 
was  held  that  grand  jurors  might  be 
examined  as  witnesses  in  court,  to  the 
question  whether  twelve  of  the  panel 
concurred  or  not  in  the  finding  of  a 
bill  of  indictment.  If  the  counsel  of 
the  grand  jurors  is  to  be  kept  secret 
at  all  events,  the  votes  of  the  grand 
jurors  are  certainly  as  much  a  matter 
of  secrecy  as  anything  done  or  testi- 
fied to  before  them.  The  action  of  a 
grand  juror  is  more  especially  a  mat- 
ter of  his  own  counsel  than  any  state- 
ment of  any  one  else  before  his  body. 
The  assertion,  that  less  than  twelve 
concurred  in  an  indictment,  involves 
necessarily  the  assertion  of  wl»o  did 
and  of  who  did  not  so  concur."  Ap- 
pleton,  C.  J.,  Slate  v.  Bcnner,  G4  Me. 
284. 

1  Studlcy  V.  Hall,  22  Me.  1  OS  ; 
Cluggage  r.  Swan,  4  Binn.  \C>0  ;  Han- 
num  V.  Bekhertown,  \0  Pick.  311. 

»  Ilaak  V.  Breidenbach,  3  S.  &  K. 
575 


§  602.] 


THE  LAW   OF  EVIDENCE. 


[book  n. 


A  juror 
who  is 
possessed 
of  knowl- 
edge ma- 
terial to  the 
case  must 
be  sworn  as 
a  witness. 


§  602.  A  juror  on  trial,  who  has  knowledge  of  any  material 
facts,  must  give  notice,  so  that  he  can  be  sworn,  ex- 
amined, and  cross-examined.  He  cannot  be  permit- 
ted to  give  evidence  to  his  fellow  jurors  without  being 
so  sworn.^  Thus,  although,  so  is  the  rule  stated,  "  each 
juryman  may  apply  to  the  subject  before  him  that 
general  knowledge  which  any  man  may  be  supposed 
to  have;  yet  if  he  be  personally  acquainted  with  any  mate- 
rial particular  fact,  he  is  not  permitted  to  mention  the  circum- 
stances privately  to  his  fellows,  but  he  must  submit  to  be  publicly 
sworn  and  examined,  though  there  is  no  necessity  for  his  leaving 
the  box,  or  declining  to  interfere  in  the  verdict."  ^  In  Michigan, 
in  1876,  this  rule  was  pushed  so  far  as  to  include  the  position  that 
if  a  juror  has  special  capacity,  as  an  expert,  to  determine  as  to 
the  genuineness  of  handwriting,  in  a  case  before  the  court,  his 
conclusions  should  be  communicated  by  him  as  a  witness  on  the 
stand  ;  and  it  was  said  by  the  court,  in  this  connection,  that  "  if 
a  verdict  were  formed  on  statements  of  ordinary  facts  by  one 
juror  to  his  fellows,  this  would  be  a  violation  of  their  oaths."  ^ 
The  principle  here  invoked  is  true,  if  by  "  ordinary  facts"  we 
mean  objective  phenomena  which  are  the  basis  of  opinion.  For 
a  juror,  no  doubt,  to  take  out  of  his  pocket  a  writing  alleged  to 
emanate  from  a  person  whose  signature  is  in  controversy,  and  to 


204  ;  Leonard  v.  Leonard,  1  W.  &  S. 
342  ;  Follansbee  v.  Walker,  74  Penn. 
St.  306. 

"It  is  equally  clear  that  the  jurors 
were  competent  witnesses.  In  Haak 
V.  Breidenbach,  3  S.  &  R.  204,  and 
Leonard  v.  Leonard,  1  W.  &  S.  342, 
the  parol  evidence  was  given  by  ju- 
rors, and  in  the  latter  case,  under  a 
special  objection  and  exception  ;  yet 
the  judgment  was  reversed  for  the 
rejection  of  the  evidence.  There  is 
no  principle  of  law  or  rule  of  policy 
which,  in  such  a  case  ought  to  exclude 
them.  It  is  entirely  different  from 
where  they  are  called  to  impeach  a 
verdict  on  the  ground  of  their  own 
misbehavior  or  that  of  their  fellows. 
Cluggage   r.    Swan,    4   Binney,    150, 

676 


though  even  that  has  been  since  ques- 
tioned. Ritchie  v.  Holbrooke,  7  S.  & 
R.  458."  Sharswood,  J.,  Follansbee 
V.  Walker,  74  Penn.  St.  309. 

1  Taylor,  §  1244. 

2  R.  r.  Rosser,  7  C.  &  P.  648,  per 
Parke,  B.  ;  Manley  v.  Shaw,  C.  & 
Marsh.  361,  per  Tindal,  C.  J.;  Ben- 
net  IK  Hartford,  Sty.  233  ;  Fitz-James 
V.  Moys,  1  Sid.  133;  Andr.  231,  arg.; 
R.  r.  Heath,  18  How.  St.  Tr.  123;  R. 
V.  Sutton,  4  M.  &  Sel.  532,  541,  542; 
6  How.  St.  Tr.  1012,  n. ;  Dunbar  v. 
Parks,  2  Tyler,  217;  Stater.  Powell,  2 
Halst.  244  ;  Howser  v.  Com.  51  Penn. 
St.  332  ;  M'Kain  v.  Love,  2  Hill  S. 
C.  506. 

3  Foster's  Will,  cited  infra,  §  713. 


CHAP.  VIII.]  WITNESSES :   POLITICAL  PRIVILEGE.  [§  604. 

offer  it  to  his  fellow  jurymen  as  a  test  paper,  would  be  an  impro- 
priety which  would  vitiate  a  verdict  in  any  way  influenced  by 
such  production.  But  in  jurisdictions  where  the  practice  is  to 
permit  comparison  of  hands  to  be  made  by  the  jury,^  the  cases 
must  be  rare  in  which  one  or  more  jurymen  will  not  have  expe- 
rience and  skill  in  such  respect  which  will  make  their  opinions 
influential  in  forming  the  conclusions  of  their  fellows.  What  is 
said  of  handwriting  applies  to  all  other  issues  involving  special 
knowledge.  An  engineer  on  a  jury  could  not,  without  exercising 
such  influence,  even  give  a  silent  vote  on  an  issue  involving  a 
question  of  engineering ;  nor,  without  similar  influence,  could  a 
farmer  on  a  question  of  farming. 

§  603.  A  prosecuting  attorney,  it  has  been  held,  is  privileged 
from  disclosing  the   proceedings   of   the   grand   jury.^   progccut- 
Communications,  also,  made  to  a  prosecuting  attorney,    '"gattor- 

'  '  r  o  ./  '     iieys  pnvi- 

relative  to  suspected  criminals,  or  to  the  operations  of   leged  as  to 
T  •  T  •Mil  1        toiifiden- 

a  detective   police,  are  privileged,  and   are   not  to  be   tiai  mat- 
divulged  by  the  attorney  without  the  consent  of   the 
person  making  the  communication.'^ 

§  604.  In  England,  under  the  reactionary  influences  which  op- 
pressed judiciary  as  well  as  executive,  during  the  ad- 
ministrations which  followed  the  French  Revolution,  it  crets  privi- 
was  held  that  a  crown  witness,  in  a  political  prosecu- 
tion, could  not  be  asked  as  to  the  quarters  from  which  his  infor- 
mation was  received ;  and  this  sanctity  was  extended  to  revenue 
as  well  as  crown  cases.*  Even  as  late  as  O'Connell's  case,^  it  was 
held  that  state  policy  precluded  an  investigation  into  the  chan- 
nels through  which  information  as  to  breaches  of  the  law  reached 
the  prosecuting  authorities.  To  this  extent  the  protection  may 
be  granted,  Kmiting  it  strictly  to  cases  of  public  as  distinguished 
from  private  necessity.^     For  the  same  reason  the  executive  of 

1  That  this  is  the  general  practice,  *  R.  v.  Watson,  32  How.  St.  Tr. 
with  greater  or  less  liberty  as  to  the  100;  R.  v.  Hardy,  24  How.  St.  Tr. 
writings  to  be  received  as  the  standard  753;  Home  v.  Bentinck,  2  15.  &  R. 
of  coniparison,  see  infra,  §   713  et  seq.     1G2. 

2  Whart.  Cr.  Law,  §   512  ;  McLol-         "  Arm.  &  T.  178. 

Ian   V.  Richardson,  13  Me.  82;  Clark  «  R.    v.  Richardson,   3   Fost.  &   V. 

V.  Field,  12  Vt.  485;  but  see  White  t;.  693  ;  Atty.    Gen.   u.    Hriant,  1.'.    M.  & 

Fox,  1  Bibb,  309.  W.    181;    U.    S.  v.    Mosos.   4    Wa!<h. 

8  Oliver  V.  Pate,  43  Ind.  132.     Sec  C.   C.    72G  ;    State  r.   Sopcr.   16  Mc. 

§604.  295.     See  1  Burr's  Trial,  IStl;   Wash- 

voL.  I.                       37  577 


§  604.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


a  state,  and  his  cabinet  officers,  are  entitled,  in  exercise  of  their 
discretion,  to  determine  how  far  they  will  produce  papers,  or  an- 


ington  V.  Scribner,  109  Mass.  487; 
Gray  v.  Pentland,  2  Serg.  &  R.  23  ; 
Oliver  v.  Pate,  43  Ind.  132. 

In  a  Massachusetts  case,  on  the  trial 
of  an  indictment  for  murder,  to  which 
the  defence  was  insanity,  an  expert, 
called  by  the  government,  testified, 
on  cross-examination,  that  he  had 
given  the  counsel  for  the  government 
a  statement  in  writing  of  his  opinion 
of  the  defendant's  mental  condition. 
The  statement  was  on  request  handed 
to  the  defendant's  counsel,  who  offered 
it  in  evidence,  but  was  objected  to  by 
the  attorney  general,  who  stated  that 
he  would  only  allow  it  to  be  used  to 
frame  questions  for  cross-examination. 
The  court  refused  to  allow  the  state- 
ment to  be  read  to  the  jury,  and  the 
defendant's  counsel  used  it  to  cross- 
examine  the  Avitness.  Held,  that  the 
defendant  had  no  ground  of  excep- 
tion. Com.  V.  Pomeroy,  117  Mass. 
144. 

In  Totten  v.  The  United  States,  98 
U.  S.  (2  Otto)  105,  the  supreme  court 
of  the  United  States  decided  a  claim 
to  recover  compensation  for  services 
alleged  to  have  been  rendered  by  the 
claimant's  intestate,  William  A.  Lloyd, 
under  a  contract  with  President  Lin- 
coln, made  in  July,  1861,  by  which  he 
was  to  proceed  South  and  ascertain 
the  number  of  troops  stationed  at  dif- 
ferent points  in  the  insui'rectionary 
states,  procure  plans  of  forts  and  for- 
tifications, and  gain  such  other  infor- 
mation as  might  be  beneficial  to  the 
government  of  the  United  States,  and 
report  the  facts  to  the  President,  for 
which  service  he  was  to  be  paid  $200 
a  month.  The  court  of  claims  finds 
that  Lloyd  proceeded,  under  the  con- 
tract, within  the  rebel  lines,  and  re- 
mained there  during  the  entire  period 
of  the  war,  collecting,  and  from  time 

578 


to  time  transmitting,  information  to 
the  President,  and  that  upon  the  close 
of  the  war  he  was  only  reimbursed  his 
expenses.  But  the  court,  being  equally 
divided  in  opinion  as  to  the  authority 
of  the  President  to  bind  the  United 
States  by  the  contract  in  question,  de- 
cided, for  the  purposes  of  an  appeal, 
against  the  claim,  and  dismissed  the 
petition. 

Field,  J.,  who  delivered  the  opinion 
in  the  supreme  court,  said :  "  We  have 
no  difficulty  as  to  the  authority  of  the 
President  in  the  matter;  he  was,  un- 
doubtedly, authorized  during  the  war, 
as  commander-in-chief  of  the  armies 
of  the  United  States,  to  employ  agents 
to  enter  the  rebel  lines  and  obtain 
information  respecting  the  strength, 
resources,  and  movements  of  the  en- 
emy, and  contracts  to  compensate  such 
agents  are*  so  far  binding  upon  the 
government  as  to  render  it  lawful  for 
the  President  to  direct  payment  of  the 
amount  stipulated  out  of  the  contin- 
gent fund  under  his  control.  Our 
objection  is  not  to  the  contract,  but 
to  the  action  upon  it  in  the  court  of 
claims.  The  service  stipulated  by  the 
contract  was  a  secret  service;  the  in- 
formation sought  was  to  be  obtained 
clandestinely,  and  was  to  be  commu- 
nicated privately ;  the  employment  and 
service  were  to  be  equally  concealed. 
Both  employer  and  agent  must  have 
understood  that  the  lips  of  the  other 
were  to  be  forever  sealed  respecting 
the  relation  of  either  to  the  matter. 
This  condition  of  the  engagement  was 
implied  from  the  nature  of  the  em- 
ployment, and  is  implied  in  all  secret 
employments  of  the  government  in 
time  of  war,  or  upon  matters  affecting 
our  foreign  relations,  where  a  disclos- 
ure of  the  service  might  compromise 
or  embarrass  our  government  in  its 


CHAP,  VIII.] 


WITNESSES  :   POLITICAL   PRIVILEGE. 


[§  604. 


sweY  questions  as  to  public  affairs,  in  a  judicial  inquiry.^     In  con- 


public  duties,  or  endanger  the  person 
or  injure  the  character  of  the  agent. 
If  upon  contracts  of  such  a  nature  an 
action  against  the  government  could 
be  maintained  in  the  court  of  claims 
whenever  an  agent  should  consider 
himself  entitled  to  greater  or  differ- 
ent compensation  than  that  awarded 
to  him,  the  whole  service  in  any  case, 
and  the  manner  of  its  discharge,  with 
the  details  of  dealings  with  individuals 
and  officers,  might  be  exposed,  to  the 
serious  detriment  of  the  public.  A 
secret  service  with  liability  to  pub- 
licity in  this  way  would  be  impossible, 
and  as  such  services  are  sometimes 
indispensable  to  the  government,  its 
agents  in  those  services  must  look  for 
their  compensation  to  the  contingent 
fund  of  the  department  employing 
them,  and  to  such  allowances  from  it 
as  those  who  dispense  that  fund  may 
award.  The  secrecy  which  such  con- 
tracts impose  precludes  any  action  for 
their  enforcement.  The  publicity  pi'o- 
duced  by  an  action  would  itself  be  a 
breach  of  a  contract  of  that  kind,  and 
thus  defeat  a  recovery.  Public  policy 
forbids  the  maintenance  of  an  action 
in  a  court  of  justice  the  trial  of  which 
would  lead  to  the  disclosure  of  mat- 
ters which  the  law  itself  regards  as 
confidential.  This  principle  is  recog- 
nized in  respect  to  the  confidential  re- 
lation between  husband  and  wife,  coun- 
sel and  client,  physician  and  patient, 
and  as  to  the  confidences  of  the  con- 
fessional." 

Chief  Justice  Eyre  states,  "  that 
among  those  questions  which  are  not 
permitted  to  be  asked  are  all  those 
questions  which  lead  to  the  discovery 
of  the  channel  by  which  the  disclos- 
ure was  made  to  the  officers  of  justice, 
that  it  is  upon  the  general  principle  of 
the  convenience  of  public  justice  that 
they  are  not  to  be  disclosed  ;  that  all 


persons  in  that  situation  are  protected 
from  the  discovery  ;  and  that,  if  it  is 
objected  to,  it  is  no  more  competent 
for  the  defendant  to  ask  who  the  per- 
son was  that  advised  him  to  make  the 
disclosure,  than  it  is  to  whom  he  made 
the  disclosure  in  consequence  of  the 
advice  —  than  it  is  to  ask  any  other 
question  respecting  the  channel  of 
communication,  or  all  that  was  done 
under  it."  Eyre,  C.  J.,  R.  v.  Hardy, 
24  How.  St.  Tr.  815;  Powell's  Evi- 
dence, 4  th  ed.  132. 

This  immunity,  however,  extends 
only  to  official  counsels.  "  A  witness 
for  the  prosecution  in  a  trial  for  riot 
may  be  compelled  to  state,  on  cross- 
examination,  whether  he  is  a  member 
of  a  secret  society  organized  to  sup- 
press a  sect  to  which  the  defendant 
belongs."  People  v.  Christie,  2  Par- 
ker C.  R.  579. 

^  Beatstone  v.  Skene,  5  H.  &  N. 
838  ;  Anderson  v.  Hamilton,  2  Bred. 
&  B.  156;  1  Burr's  Trial,  186;  Gray 
V.  Pentland,  2  Serg.  &  R.  23  ;  Yoter  v. 
Sanno,  6  Watts,  164  ;  Cooper's  case, 
Whart.  St.  Tr.  662;  Marbury  v. 
Madison,  1  Cranch,  144;  Thompson 
V.  R.  R.  22  N.  J.  Eq.  111.  See 
Dickson  v.  Wilton,  1  Fost.  &  F. 
425,  where  Lord  Campbell,  following 
Beatstone  i'.  Skene,  5  H.  &  N.  838, 
intimated  that  where  a  head  of  a  de- 
partment should  send  papers  called 
for,  the  judge  might  examine  the  pa- 
pers himself,  and  determine  whether 
they  are  such  as  public  policy  ex- 
cludes. 

As  to  privileges  of  senators  of  the 
United  States  in  respect  to  their  con- 
sultations, sec  Law  v.  Scott,  5  Har.  & 
J.  438.  In  England,  members  of  par- 
liament are  privileged  from  examina- 
tion as  to  what  took  place  in  parlia- 
ment. Chubb  V.  Salomons,  3  C.  &  K. 
75. 

679 


§  605.]  THE  LAW   OF   EVIDENCE.  [BOOK  II. 

formity  with  this  view,  it  has  been  held  that  communications  in 
official  correspondence  relating  to  matters  of  state  cannot  be  pro- 
duced as  evidence  in  an  action  against  a  person  holding  an  office, 
for  an  injury  charged  to  have  been  done  by  him  in  exercise  of 
the  power  given  to  him  as  such  officer  ;  not  only  because  such 
communications  are  confidential,  but  because  their  disclosure 
might  betray  secrets  of  state  policy.^  And  where  a  minister  of 
state,  subpoenaed  to  produce  public  documents,  objects  to  do  so 
on  the  ground  that  their  publication  would  be  injurious  to  the 
public  interest,  the  court  ought  not  to  compel  their  publication  ;  ^ 
and  the  question,  whether  the  production  of  such  a  document 
would  be  injurious  to  the  public  service,  must  be  determined  by 
the  head  of  the  department  having  the  custody  of  the  paper,  and 
not  by  the  judge.^  This  privilege,  however,  has  been  held  to  be 
personal  to  the  head  of  a  department,  and  cannot  be  claimed  by 
a  subordinate ;  ^  but  in  a  suit  against  an  admiral  in  the  royal 
navy  to  recover  damages  for  a  collision  caused  by  his  flagship. 
Sir  R.  Phillimore  refused  the  plaintiff  permission  .to  inspect  re- 
ports of  the  collision  made  by  the  admiral  to  the  lords  of  the 
admiralty,  the  secretary  to  the  admiralty  having  made  an  affi- 
davit that  their  production  would  be  prejudicial  to  the  public 
service.^ 

§  605.  Public  policy  also,  in  view  of  the  importance  of  keep- 
And  so  ing  intact  the  prerogatives  of  the  legislature,  as  well 
tkms"and  ^s  of  the  executive,  forbids  compelling  witnesses 
coinmuni-  (^whether  reporters  or  members)  to  answer  ques- 
legisiature    tions  as  to  debates  and  votes  in  either  house  of  the 

3.1ld.  GXGCU." 

live.  legislature,  unless  the  consent   of   the  house   be   first 

1  Anderson  v.  Hamilton,  2  B.  &  B.  secondary  evidence  of  its  contents  is 

166,  n.    Lord  Campbell,  C.  J.  (Sj-kes  inadmissible.     Horn  v.  Bentinck,  2  B. 

V.  Dunbar,  2  Selw.  N.  P.  1059;  4  Bl.  &  B.  130 ;  Powell's  Evidence,  4th  ed. 

Comm.  126  ;  note  by  Mr.  Chi'istian  of  135. 

a  case  at  York),  once  held  that  a  wit-         ^  ggatstone   v.  Skene,   5   H.  &  N. 

ness  cannot  refuse  to  produce  a  letter  838, 

which  he  holds  from  a  secretary  of        *  Ibid.,  per  Pollock,  C.  B.,  5  H.  & 

state,  to  whom  it  lias  been  addressed  N.  853. 

in  his  public  character,  and  who  for-         *  Dickson  v.  Lord  Wilton,  1  F.   & 

bids  its  production.     At  the  same  time  F.  424. 

it  must  be  remembered,  that  where  a         ^  The  Bellerophon,  23  W.  R.  248  ; 

document  is  privileged  from   produc-  41  L.  J.  Adm.  5. 
tion  on  the  grounds  of  public  policy, 

680 


CHAP.  VIII.]  WITNESSES  :   MEDICAL   ATTENDANTS. 


[§  606. 


given. 1  So  it  was  held  by  Lord  Ellenborough,^  that  while  a 
member  of  parliament  or  the  speaker  may  be  called  on  to  give 
evidence  of  the  fact  of  a  member  of  parliament  having  taken 
part  or  spoken  in  a  particular  debate,  he  cannot  be  asked  what 
was  then  delivered  in  the  course  of  the  debate.  It  has  also  been 
held  that  communications  between  a  governor  of  a  province  and 
his  attorney-general  are  privileged.^  Mere  volunteer  private 
communications  to  the  executive  are  not  so  privileged.^ 

§  606.    A  medical  attendant   is    ordinarily  without    privilege 
even  as  to  communications  confidentially  made  to  him   _,  ,.   ,  ^ 

•^  Medical  at- 

by  his  patient.^  In  the  United  States,  however,  stat-  teadants 
utes,  in  several  jurisdictions,  have  been  passed  confer-  nariiypriv- 
ring  this  immunity,^  which  statutes  virtually  prohibit  '  ^^^ 
physicians  from  disclosing  information  they  derive  professionally 
from  their  relations  to  their  patient.'^  The  privilege  of  the  stat- 
ute may  be  waived  by  the  patient.**  But  it  does  not  ajjply  to 
testamentary  inquiries ;  ^  and  in  any  view  does  not  protect  con- 


1  Plunkett  V.  Cobbett,  5  Esp.  136  ; 
S.  C.  29  How.  St.  Tr.  71;  Chubb  v. 
Salomons,  3  C.  &  K.  75. 

2  Plunkett  V.  Cobbett,  5  Esp.  136. 

8  Wyatt  V.  Gore,  Holt,  299.  This 
rule  was  discussed  in  the  Rajah  of 
Coorg  V.  East  India  Co.  29  Beav.  350, 
where  it  was  stated  that  the  produc- 
tion of  political  documents  depends 
not  upon  the  question  whether  the 
person  called  on  to  produce  them  is  a 
party  to  the  suit  or  not,  but  upon  the 
danger  to  the  public  interests  which 
would  result  from  their  publication. 
Where  an  officer  in  the  army  sued  a 
superior  oflicer  for  defamation,  the  al- 
leged libel  being  contained  in  evidence 
given  by  the  latter  before  a  military 
court  of  inquiry,  the  court  of  ex- 
chequer chamber  held  such  evidence 
to  be  not  only  privileged  from  being 
the  subject  of  an  action  for  libel,  but 
also  wholly  inadmissible,  since  the  pro- 
ceedings of  the  court  being  delivered 
to  the  commander-in-chief,  and  held 
by  him  on  behalf  of  the  sovereign, 
ought  not  to  be  produced  except  by 


her  majesty's  command  or  permission. 
Dawkins  v.  Lord  Rokeby,  L.  R.  8  Q. 

B.  255  ;  42  L.  J.  Q.  B.  73;  affirmed 
by  the  House  of  Lords,  W.  N.  1875,  p. 
154  ;  Powell's  Evidence,  4th  ed.  132. 

*  Blake  v.  Pilford,  1  M.  &  Rob. 
198. 

5  Duchess  of  Kingston's  case,  20 
How.   St.  Tr.  613  ;  Baker  v.  R.  R.  3 

C.  P.  91;  Mahoney  v.  Ins.  Co.  L.  R. 
6  C.  P.  252. 

See,  as  qualifying  this  in  cases  where 
a  physician  is  employed  by  a  railway 
company,  in  special  cases,  to  inquire 
as  to  damages  from  accidents,  Cossey 
V.  R.  R.  L.  R.  5  C.  P.  14G  ;  Skinner 
V.  R.  R.  L.  R.  9  Ex.  298. 

«  Whart.  Cr.  Law  (7th  ed.),  §  774; 
Elwell's  Malpractice,  320. 

'  Ediugton  v.  Ins.  Co.  5  Hun  (N. 
Y.)  1  ;  Kendall  i-.  Grey,  2  Hilt.  (N. 
Y.)  300  ;  People  v.  Stout,  3  Parker 
C.  R.  670. 

*  Johnson  v.  Johnson,  14  Wend. 
637. 

®  Allen  V.  Public  Administrator,  1 
Bradf.  (N.  Y.)  221. 
581 


§  608.] 


THE   LAW  OF  EVIDENCE. 


[book  II. 


sultations  for  criminal  purposes.^     Whether,  by  the  Roman  com- 
mon law,  a  physician  is  privileged  as  to  matters  confidentially 
imparted  to  him  by  a  patient,  has  been  much  discussed  ;  and  the 
tendency  is  to  assert  the  inviolability  of  such  secrets.^ 
L-  §  607.  Excepting  marriage,  as  is  elsewhere  shown,  there  is  no 

domestic  relationship  recognized  by  the  law  as  attach- 
ing inviolability  to  its  conferences.  Thus  parents  will 
be  compelled  to  disclose  confidential  communications 
from  their  children  ;  ^  servants,  those  of  masters  ;  ^ 
friends  those  of  friends.^ 

§  608.  So  great  is  the  sanctity  attached  by  the  law  to  mar- 
riage, that  the  lips  of  parents  are,  as  a  rule,  sealed  on 
the  question  of  sexual  intercourse,  so  far  as  such  tes- 
timony would  go  to  assail  the  legitimacy  of  children. 
Whether  there  was  such  intercourse  cannot  be  inquired 
of  from  either  father  or  mother,  either  directly  or  by 
aid  of  circumstances  from  which  the  result  could  be  in- 
This  inviolability,  however,  is  limited  to  cases  where 
legitimacy  is  at  issue,  and  does  not  preclude  the  examination, 
in  cases  of  bastardy,  of  a  married  woman   as  to  her  adultery 
with  a  third  person,  when  non-access  with  her  husband  is  first 
proved."     And  it  has  been  held  competent  for  a  widow,  after 
her  husband's  death,  to  testify  in  support  of  her  children's  le- 
gitimacy.^    But  the  mother  of  a  child,  begotten  before  marriage, 
though  born  after,  is  incompetent  to  prove  that  the  child  was  not 
begotten  by  the  husband.^     The  privilege  thus  established  is  not 
affected  by  the  statutes  removing  disability  from  interest. ^*^ 


No  privi- 
lege at- 
tached to 
ties  of 
blood  or 
friendship 


Parents 
cannot  be 
asked  as  to 
sexual  in- 
tercourse 
in  cases  in- 
volving 
legitimacy. 

ferred.^ 


1  Hewitt  V.  Prime,  21  Wend.  79. 

2  See  a  summary  of  the  question  in 
Weiske's  Rechtslexicon,  xv.  259,  ff. 

8  Gilb.  Ev.  135. 

*  State  V.  Charity,  2  Dev.  543 ; 
State  V.  Isham,  6  How.  (Miss.)  35. 

6  Smith  V.  Daniell,  L.  R.  18  Eq. 
649. 

«  R.  V.  Luffe,  8  East,  193;  Good- 
right  V.  Moss,  2  Cowp.  594 ;  Wright 
V.  Holgate,  3  C.  &  K.  158;  R.  v. 
Sourton,  5  A.  &  E.  180  ;  R.  i;.  Mans- 
field, 1  Q.  B.  444;  Anon.  v.  Anon. 
22  Beav.  481  ;  23  Beav.  273;  Ride- 
582 


out's  Trusts,  L.  R.  10  Eq.  41  ;  Cham- 
berlain V.  People,  23  N.  Y.  85;  Boykin 
V.  Boykin,  70  N.  C.  262. 

">  Cope  V.  Cope,  1  M.  &  Rob.  272; 
R.  I'.  Reading,  Cas.  temp.  Hard.  79  ; 
Com.  V.  Connelly,  1  Browne  (Pa.), 
284;  Com.  v.  Shepherd,  6  Binney, 
283  ;  State  v.  Pettaway,  3  Hawks, 
623. 

8  Moseley  v.  Eakin,  15  Rich.  (S.  C.) 
324. 

^  Dennison  v.  Page,  29  Penn.  St. 
420. 

10  "That    issue  born  in  wedlock, 


CHAP.  VIII.] 


WITNESSES. 


[§  609. 


XVI.  DEPOSITIONS. 
§  609.  Depositions  taken  in  perpetuam  memoriam^  as  belong- 
ing to  a  branch  of  practice  determined  by  principles   Deposi- 
common  to  most  jurisprudences,  have  been  already  dis-   eraed^by" 
cussed.  1     Depositions  of  absent  or  sick  witnesses,  how-   ^^^^^  '^^^• 
ever,  taken  under  rule  of  court,  as  a  substitute  for  oral  examina- 
tions, are  governed  by  local  practice.     To  give  the  adjudications 
in  this  connection  would  require,  so  numerous  are  they  and  so 
abundant  in  technical  distinctions,  a  separate  volume.     They  are 
therefore  remanded  to  treatises  on  practice,  to  which  they  more 
properly  belong. 


though  begotten  before,  is  presump- 
tively legitimate,  is  an  axiom  of  law 
so  well  established,  that  to  cite  au- 
thorities in  support  of  it  would  be  a 
mere  waste  of  time.  So  the  rule,  that 
the  parents  will  not  be  permitted  to 
prove  non-access  for  the  purpose  of 
bastardizing  such  issue,  is  just  as  well 
settled.  Many  reasons  have  been 
given  for  this  rule.  Prominent  among 
them  is  the  idea  that  the  admission  of 
such  testimony  would  be  unseemly 
and  scandalous,  and  this  not  so  much 
from  the  fact  that  it  reveals  immoral 
conduct  upon  parts  of  the  parents,  as 
because  of  the  effect  it  may  have  upon 
the  child,  who  is  in  no  fault,  but  who 
must,  nevertheless,  be  the  chief  suf- 
ferer thereby.  That  the  parents  should 
be  permitted  to  bastardize  the  child, 
is  a  proposition  which  shocks  our  sense 
of  right  and  decency,  and  hence  the 
rule  of  law  which  forbids  it. 

"But  the  counsel  for  the  appellant 
insists  that  the  case  is  within  the  pur- 
view of  the  Act  of  1869.  The  lan- 
guage of  that  act,  at  first  blush,  might 
seem  to  include  a  case  of  this  kind. 
'  No  interest  or  policy  of  iaio  shall  ex- 
clude a  party  or  person  from  being  a 


witness  in  any  civil  proceeding.'  The 
words  we  have  italicized  are  those  re- 
lied upon  to  support  the  appellant's 
theory.  But  when  we  come  to  con- 
sider the  fact,  that  '  the  interest  or  * 
policy  of  law  '  which  the  legislature 
had  in  view  in  passing  that  act,  was 
that  which,  before  that  time,  excluded 
parties  from  testifying  in  their  own 
suits,  or  where  they  had  an  interest 
in  the  subject  matter  in  controversy, 
it  becomes  obvious  that  a  case,  such 
as  the  one  under  discussion,  was  not 
in  the  legislative  mind  when  that  act 
was  passed.  It  would,  therefore,  be 
an  unnecessary  and  violent  construc- 
tion of  the  statute  to  make  it  include 
a  '  policy  of  law '  wholly  different 
from  that  under  contemplation  when 
it  was  framed.  We  therefore,  with- 
out hesitation,  adopt  the  view  taken 
of  this  question  by  the  learned  judge 
of  the  court  of  quarter  sessions,  and 
agree  with  him  that  the  Act  of  1869 
was  not  intended  to  abolish  a  valuable 
rule  of  law  founded  in  good  morals 
and  public  decency."  Gordon,  J., 
Tioga  County  v.  South  Creek  Town- 
ship, 75  Penn.  St.  436,  437. 
1  Sec  supra,  §  181. 

683 


CHAPTER  IX. 


DOCUMENTS. 


I.  General  Rules. 

A  document  is  an  instrument  in  which 

facts  are  recorded,  §  614. 
Instrument  is  that  which  conveys  in- 
struction, §  615. 
Pencil  writing  is  sufficient,  §  616. 
Detached  writings  (e.  g.  letters  and 

telegrams)  may  constitute  contract, 

§617. 
Relative      instrument      inadmissible 

without  correlative,  §  618. 
Admission  of  part  involves  admission 

of  whole,  §  619. 
One  part  of  an  account  cannot  be  put 

in  evidence  without  the  rest,  §  620. 

II.  Interlineations  and  Alterations. 

By  Roman  law  presumption  is  against 

corrections    and    interlineations,   § 

621. 
B3'  our  own  law,  material  alterations 

avoid  dispositive  instrument,  §  622. 
Not  so  immaterial  alteration,  §  623. 

Nor  alteration  by  consent,  §  624. 

Nor  alteration  during  negotiation, 
§625. 
As    to    negotiable    paper,    alteration 

avoids,  §  626. 
Alteration  by  stranger  does  not  avoid 

instrument  as  to  innocent  and  non- 
negligent  holder,  §  627. 
In  writings  inter  vivos  presumption  is 

that  alteration  was  made  before  ex- 
ecution, §  629. 
Otherwise  as  to  wills,  §  630. 
As  to  ancient  documents,  burden  of 

exploration  is  not  imposed,  §  631. 
Blank  in  document  may  be  filled  up, 

§632. 
III.  Statutes  ;   Legislative   Journals  ; 

Executive  Documents. 
Public  statutes  prove  their  recitals, 

§635. 
Otherwise  as  to  private  statutes,  §  636. 

684 


(For  proof  of   public  and  private 
statutes,  see  §  289  et  seq.) 

Journals  of  legislature  proof  as  to  re- 
cited facts,  §  637. 

So  of  executive  documents,  §  638. 
IV.  Non-Judicial  Registries  and  Rec- 
ords. 

Official  registry  admissible  when  stat- 
utory, §  639. 

So  of  records  of  public  administrative 
officer,  §  640. 

So  of  records  of  town  meetings,  §  641. 

A  record  includes  its  incidents,  §  642. 

Record  must  be  of  class  authorized  by 
law,  §  643. 

It  must  be  identified  and  be  complete, 
§644. 

It  must  indicate  accuracy,  §  645. 

It  must  not  be  secondary,  §  646. 

Books  and  registries  kept  by  public 
institutions  admissible,  §  647. 

Log-book  admissible  under  act  of 
Congress,  §  648. 

(For  Judicial  Records,  see  infra, 
§758.) 
V.  Records  and  Registries  of  Birth, 
Marriage,  and  Death. 

Parish  records  generally  admissible, 
§649. 

Registries  of  marriage  and  death  ad- 
missible when  duly  kept,  §  653. 

So  when  kept  by  deceased  persons  in 
course  of  their  duties,  §  654. 

Registry  only  proves  facts  which  it 
was  the  duty  of  the  writer  to  re- 
cord, §  655. 

Entries  must  be  at  first  hand  and 
prompt,  §  656. 

Certificate  at  common  law  inadmissi- 
ble, §  657. 
And  so  of  copies,  §  658. 

Family  records  admissible  to  prove 
family  events,  §  660. 


CHAP.  IX.] 


DOCUMENTS. 


VI.  Corporation  Books. 

Books    of  a    corporation    admissible 

against  members,  §  661. 
But  not  against  strangers,  §  662. 
Wlien  proceedings  of  corporation  can 

be  proved  by  parol,  §  663. 

VII.  Books  of   History   and   Science; 

Maps  and  Charts. 

Approved  books  of  history  and  geog- 
raphy by  deceased  authors  receiv- 
able, §  664. 

Books  of  inductive  science  not  usually 
admissible,  §  665. 

Otherwise  as  to  books  of  exact  science, 
§067. 

Maps  and  charts  admissible  to  prove 
reputation  as  to  boundaries,  §  668. 

And  so  as  against  parties  and  privies, 
§670. 

VIII.  Gazettes  and  Newspapers. 
Gazette   evidence   of    public    official 

documents,  §  G71. 
Newspapers  admissible  to  impute  no- 
tice, §  672. 

So  to  prove  dissolution  of  part- 
nership, §  673. 
But  not  generally  for  other  pur- 
poses, §  G74. 
Knowledge  of  newspaper  notice 
may  be  proved  inferentially, 
§  675. 
IX.  Pictures,  Photographs,  and  Dia- 
grams. 
Pictures  and  photographs  in  cases 

of  identity  admissible,  §  676. 
And  so  of  plans  and  diagrams,  § 
677. 
X.  Shop  Books. 

Shop  books  admissible  when  veri- 
fied by  oath  of  party,  §  678. 
Change  of  law  in  this   respect  by 
statutes  making  parties  witnesses, 
§679. 
Not    necessary   that    party   should 
have  independent  recollection,  § 
G80. 
Charge  must  be  in  part3''s  business, 

§681. 
Book  must  be  one  of  original  entry, 

§682. 
Entries  must  be  contemporaneous, 

§  683. 
Book  nuist  be  regular,  §  684. 
Charge   must   relate   to  immediate 

transaction,  §  685. 
Such  books  may  be  secondary,   § 
686. 


When  plaintiff's  case  shows  trans- 
fer to  ledger,  the  ledger  must  be 
produced,  §  687. 

Writing  of  deceased  party  may  be 
proved,  §  688. 
XL  Proof  of  Documents. 

Document  must  be  proved  by  party 
offering,  §  689. 

Otherwise  when  produced  by 
opposite  party  claiming  in- 
terest under  it,  §  690. 
Under  statutes  proof  need  not 
be  made  unless  authenticity 
be  denied  by  affidavit,  §  691. 

Seal  may  prove  authorization  of  in- 
strument, §  692. 

Substantial  identification  is  suffi- 
cient, §  693. 

Distinctive  views  as  to  corporations, 
§  694. 

Public  seal  proves  itself,  §  695. 

Mark  may  be  equivalent  to  signa- 
ture, §  696. 

Stamps  when  necessary  must  be  at- 
tached, §  697. 

Documents  are  to  be  executed  ac- 
cording to  local  law,  §  700. 

Identity  of  alleged  signer  of  docu- 
ment must  be  shown,  §  701. 

Document  b}'  agent  cannot  be 
proved  without  proving  power  of 
agent,  §  702. 

Documents  over  thirty  years  old 
prove  themselves,  §  703. 

Ancient  documents  may  be  verified 
by  experts,  §  704. 

Handwritin(j  may  be  proved  by 
writer  himself,  or  by  his  admis- 
sions, §  705. 

Party  may  be  called  upon  to  write, 
§706. 

Seeing  a  person  write  qualifies  a 
witness  to  speak  as  to  signature, 
§707. 

Witness  familiar  with  anotlier's 
writing  may  \ivo\-q  it,  §  708. 

Burden  on  ])arty  to  prov«  witness 
incompetent,  §  709. 

On  cross-examination  witness  may 
be  tested  by  otiier  writings,  § 
710. 

Comparison  of  hands  permitted  by 
Roman  law,  §  711. 

Otherwise  by  Knglish  common  law, 
§712. 

Exception  made  as  to  test  paper  al- 
ready in  evidence,  §  713. 

585 


§  614.] 


THE   LAW   OF    EVIDENCE. 


[book  II. 


In  some  jurisdictions  comparison  is 
admitted,  §  714. 

Test  papers  made  for  purpose  inad- 
missible, §  715. 

Unreasonableness  of  exclusion  of 
comparison  of  hands,  §  717. 

Experts  admitted  to  test  writings, 
§718. 

Photof^raphers  in  such  cases  admis- 
sible as  experts,  §  720. 

Experts  may  be  cross-examined  as 
to  skill,  §721. 

Their  testimony  to  be  closely  scru- 
tinized, §  722. 

Attesting  witness,  when  there  be 
such,  must  be  called,  §  723. 

Collateral  matters  do  not  require 
attesting  witness,  §  724. 

When  attestation  is  essential  admis- 
sion by  party  is  insufficient,  §  725. 

Absolute  incapacity  of  attesting  wit- 
ness a  ground  for  non-production, 
§726. 

Secondary  evidence  in  such  case  is 
proof  of  handwriting,  §  727. 

Such  evidence  not  admissible  on 
proof  only  of  sickness  of  witness, 
§  728. 

Only  one  attesting  witness  need  be 
called,  §  729. 

Witness  may  be  contradicted  by 
party  calling  him,  §  730. 

But  not  by  proving  his  own  dec- 
larations, §  731. 

Attesting  witness  need  not  be  called 
to  document  thirty  years  old,  § 
732. 

Accompanying  possession  need  not 
be  proved,  §  733. 

Deeds  by  corporations  proved  by 
corporate  seal,  §  735. 

Attesting  witness  need  not  be  called 
when  adverse  party  produces  deed 


under  notice,  and  claims  therein 
an  interest,  §  73G. 

Where  a  document  is  in  the  hands 
of  adverse  party  who  refuses  to 
produce,  then  party  offering  need 
not  call  attesting  witness,  §  737. 

Nor  need  such  witness  be  called  to 
lost  documents,  §  738. 

Sufficient  if  attesting  witness  can 
prove  his  own  handwriting,  §  739. 

Must  be  prima  facie  identification 
of  party,  §  739  a. 

When  statutes  make  acknowl- 
edged instrument  evidence,  it  is 
not  necessary  to  call  attesting 
witness,  §  740. 
XII.  Inspection  of  Documents  by  Or- 
der OF  Court. 

Rule  may  be  granted  to  compel  pro- 
duction of  papers,  §  742. 
So  as  to   public  documents,  § 
745. 

Corporation  books,  §  746. 
Public  administrative  offi- 
cers, §  747. 
Deposit  and  transfer  books 
§748. 

Inspection  must  be  ordered,  but  not 
surrender,  §  749. 

Previous  demand  must  be  shown, 
§750. 

Production  of  criminatory  docu- 
ment will  not  be  compelled,  §  751. 

Documents  when  produced  for  in- 
spection may  be  examined  hy  in- 
terpreters and  experts,  §  752. 

Deed  when  pleaded  can  be  inspect- 
ed, §  753. 

Inspection  may  be  secured  by  bill 
of  discovery,  §  754. 

Papers  not  under  respondent's  con- 
trol he  will  not  be  compelled  to 
produce,  §  756. 


I.  GENERAL  CONSIDERATIONS. 

§  614.  A  "DOCUMENT,"  in  the  sense  in  which  the  term  is  used 
Document  in  this  treatise,  is  an  instrument  on  which  is  recorded, 
strument  ^J  means  of  letters,  figures,  or  marks,  matter  which 
facts'ar^  may  be  evidentially  used.  In  this  sense  the  term  doc. 
recorded.  umeiit  applies  to  writings ;  to  words  printed,  litho- 
graphed or  photographed  ;  to  seals,  plates  or  stones  on  which  in- 
scriptions are  cut  or  engraved  ;  to  photographs  and  pictures  ;  to 
686 


CHAP.  IX.] 


DOCUMENTS. 


[§  614. 


maps  and  plans. ^  So  far  as  concerns  admissibility,  it  makes  no 
difference  what  is  the  thing  on  which  the  words  or  signs  offered 
may  be  recorded.  They  may  be,  as  is  elsewhere  seen,  on  stone 
or  gems,2  or  on  wood,^  as  well  as  on  paper  or  parchment. 


1  Mr.  Stephen  (Ev.  2,  3),  defines 
a  document  as  "  any  matter  expressed 
or  described  upon  any  substance  by 
means  of  letters,  figures,  or  marks,  or 
by  more  than  one  of  these  means,  in- 
tended to  be  used,  or  which  may  be 
used,  for  the  purpose  of  recording 
that  matter."  A  reviewer  in  the  So- 
licitors' Journal  of  September  2,  1876, 
questions  the  propriety  of  styling  a 
document,  in  the  above  definition,  as 
the  "  matter  "  described.  The  "  doc- 
ument," it  is  urged,  is  the  substance 
on  which  is  recorded  the  inscription. 
As  a  substitute,  the  following  is  sug- 
gested :  "  Document  means  any  sub- 
stance having  any  matter  expressed 
or  described  upon  it  by  means  of  let- 
ters, figure?,  or  marks,  or  by  more 
than  one  of  these  means." 

"  Documents  of  a  public  nature,  and 
of  public  authority,  are  generally  ad- 
missible in  evidence,  although  their 
authenticity  be  not  confirmed  by  the 
usual  and  ordinary  tests  of  truth,  the 
obligation  of  nn  oath,  and  the  power 
of  cross-examining  the  parties  on 
whose  authority  the  truth  of  the  doc- 
ument depends.  The  extraordinary 
degree  of  confidence  thus  reposed  in 
such  documents,  is  founded  principally 
upon  the  circumstance  that  they  have 
been  made  by  authorized  and  accred- 
ited agents  appointed  for  the  purpose, 
and  also  partly  on  the  publicity  of  the 
subject  matter  to  which  they  relate, 
and  in  some  instances  upon  their  an- 
ticjuity.  Where  particular  facts  are 
inquired  into,  and  recorded  for  the 
benefit  of  the  public,  those  who  are 
empowered  to  act  in  making  such  in- 
vestigations and  memorials  are,  in 
fact,  the  agents  of  all  the  individuals 


who  compose  the  public  ;  and  every 
member  of  the  community  may  be 
supposed  to  be  privy  to  the  investiga- 
tion. On  the  ground,  therefore,  of 
the  credit  due  to  the  agents  so  em- 
powered, and  of  the  public  nature  of 
the  facts  themselves,  such  documents 
are  entitled  to  an  extraordinary  de- 
gree of  confidence,  and  it  is  not  requi- 
site that  they  should  be  confirmed  and 
sanctioned  by  the  ordinary  tests  of 
truth;  in  addition  to  this,  it  would  not 
only  be  difficult,  but  often  utterly  im- 
possible, to  prove  facts  of  a  public 
nature  by  means  of  actual  witnesses 
examined  upon  oath."  Stark.  Evid. 
272-3,  4th  ed.  See  ace.  Merrick  v. 
Wakley,  8  A.  &  E.  1 70  ;  Doe  d. 
France  v.  Andrews,  15  Q.  B.  759,  per 
Erie,  J. 

2  Supra,  §  220. 

8  Kendall  v.  Field,  14  Me.  30;  Row- 
land V.  Burton,  2  Harr.  (Del.)  288. 
Wooden  tallies  were  formerly  in  use 
in  England  for  the  purpose  of  notch- 
ing off  the  numbers,  even  on  public 
accounts.  Pepys,  in  the  third  volume 
of  his  Diary,  frequently  adverts  to  this 
practice.  Tallies  (see  infra,  §  684) 
continued  to  be  used  in  this  country  by 
bakers  and  milkmen.  The  exchequer 
tallies,  says  Mr.  Best,  Evidence,  298, 
were  used  as  ac(juittances  for  debts 
due  to  the  crown,  and  for  some  other 
pur[)oses.  A  piece  of  wood,  about  two 
feet  long,  was  cut  into  a  particular  un- 
even form,  and  scored  with  notches  of 
difl'erent  sizes  to  denote  different  de- 
nominations of  coin,  the  largest  denot- 
ing thousands  of  pounds,  after  which 
came  respectively  hundreds,  tens,  and 
units  of  pounds,  while  shillings  and 
pence  were  designated  by  still  smaller 

687 


§  616.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


is  that 
which  con- 
veys in- 
struction 
in  writing 
or  signs. 


§  615.  By  the  Roman  law,  instrumentum  is  defined  as  omne 
id,  quo  causa  instrui  potest,  even  witnesses  being  in- 
cluded in  the  general  term.  In  our  own  law,  the 
term  "  instrument  "  has  the  same  wide  signification ; 
including  whatever  may  be  presented  as  evidence  to 
the  senses  of  the  adjudicating  tribunal.  Hence  as 
instruments  of  evidence  may  be  mentioned  not  merely  docu- 
ments, in  the  sense  in  which  the  term  has  just  been  defined,  but 
witnesses,  and  living  things  which  may  be  presented  for  inspec- 
tion. ^ 

§  G16.  It  has  been  sometimes  intimated  that  ink  is  necessary 
to  constitute  a  valid  writing,  when  a  writing,  as  such, 
is  to  be  proved.  But  the  mode  of  writing  is  imma- 
terial, if  the  thing  written,  as  we  have  just  seen,  be 
legible  ;  and  it  has  been  frequently  held  that  pencil  writing,  if 
identified,  is  sufiicient  to  constitute  a  writing  receivable  in  evi- 
dence ;  ^  and  this  even  under  the  statute  of  frauds.^ 


Pencil 

writing 

sufficient 


notches.  The  wood  was  then  split 
down  the  middle,  into  two  parts, 
so  that  the  cut  passed  through  the 
notches.  One  portion  was  given  out 
to  the  accountant,  &c.,  which  was 
called  the  "  tally  ;  "  the  other  was 
kept  by  the  chamberlain,  and  called 
the  "  counterfoil."  The  irregular 
form  of  the  tally,  together  with  the 
natural  inequalities  in  the  grain  of  the 
wood,  rendered  fabrication  extremely 
difficult. 

1  Supra,  §§  345,  347.  The  Roman 
commentators  mention  as  an  illustra- 
tion a  sick  horse,  as  in  a  case  cited  by 
Gliick  under  the  redhibitorian  action. 
Gluck,  Pand.  22,  pp.  3-8.  So  may 
be  noticed  a  dog,  as  to  whose  charac- 
ter for  mischief"  there  may  be  a  con- 
test. Supra,  §§  345-6.  A  tortoise, 
brought  into  court  for  the  purpose  of 
proving  an  inscription  on  his  shell, 
would,  according  to  Gliick's  distinc- 
iion,  be  a  "  document;  "  and  so  would 
the  Tichborne  claimant,  when  exhib- 
ited to  the  jury,  in  order  that  the  tat- 

588 


too  marks  on  his  arm  should  be  in- 
spected. 

2  Millett  V.  Marston,  62  Me.  477; 
True  V.  Bryant,  32  N.  H.  241  ;  Hill 
V.  Scott,  12  Penn.  St.  168;  Gratz  v. 
Beates,  45  Penn.  St.  495 ;  ]\Iay  v. 
State,  14  Oh.  461;  Rembert  v.  Brown, 
14  Ala.  360.  As  to  records,  however, 
see  infra,  §  645. 

3  Merritt  i'.  Clason,  12  Johns.  10  6; 
Clason  V.  Bailey,  14  Johns.  491.  In 
a  case  in  Pennsylvania  in  1875 
(Woodward's  Will,  1  Weekly  Notes, 
177),  it  was  lefl  undecided  whether 
a  pencil  writing  on  slate  would  con- 
stitute a  will,  the  case  not  requiring 
the  point  to  be  ruled ;  but  it  is  diffi- 
cult to  see  why,  if  pencil  marks  on 
paper  would  stand,  pencil  marks  on 
slate  should  fail.  Bacon's  Abr.  tit. 
W^ills,  §  307,  pi.  1;  In  re  Goods  of 
Dyer,  1  Haggard,  219;  5.  C.  3  Ecc. 
Rep.  92;  Dickenson  v.  Dickenson,  2 
Phillimore,  173;  5.  C.  1  Ecc.  Rep. 
222;  Mence  v.  Mence,  18  Vesey,  Jr. 
348;  Green  v.  Skipworth,  1  Philli- 
more, 53  ;  S.  C.  1  Ecc.  Rep.  33. 


CHAP.  IX.]  DOCUMENTS.  [§  618. 

§  617.  It  is  elsewhere  mentioned,i  that  letters  and  telegrams 

may  be  received  as  dispositive  admissions  by  the  parties    Detached 

from  whom  they  emanate.     It  is  hardly  necessary  to    Z^lj!ht-' 

recall  the  fact  that  when  taken  in  connection  with  a   [^\^  '^"'^ 

letter,   or    telegram,   or    other  communication,   on  the   "^'''y  con- 

^1         .  T          1  .  »  stitute  con- 

other  side,  a  letter  may  constitute  part  or  a  contract,   tract. 

and  is  to  be  construed  as  such.^  The  contract  may  be  gathered 
from  a  series  of  connected  papers  and  memoranda ;  ^  but  where 
a  person  seeks  to  prove  the  terms  of  a  contract  by  a  series  of  let- 
ters, he  must  take  the  whole  of  each  letter,  and  cannot  pick  out 
part  and  reject  the  rest.^  A  single  telegram  sent  by  a  purchaser 
may,  if  accepted,  constitute  a  sufficient  memorandum,  within  the 
statute  of  frauds.^  To  satisfy  the  statute,  the  memorandum  need 
only  be  signed  by  the  party  charged  ;  and,  if  so  signed,  is  good 
against  him,  though  not  against  the  other  party  ;  and  where  a 
written  proposal  signed  by  one  contracting  party  is  orally  as- 
sented to  by  the  other,  it  is  a  memorandum,  within  the  statute, 
sufficient  to  charge  the  party  signing.''  A  mere  insulated  tele- 
gram, however,  cannot  be  introduced  to  prove  a  contract." 

§  618.  By  the  Roman  law  a  writing  in  itself  incomplete,  but 
referring  to  another,  cannot  be  received  without   the   „  ,  ^. 

.   _        c'  ,  '  _  Relative 

writing  to  which  reference  is  so  made.     Documentiim    writing  in- 

.  .  ,  .7  .7  7  ,1  1      •  admissible 

referens  sine  relato  nihil  probat ;  or,  as  the  rule  is  more  without 
accurately  stated,  a  relative  document,  documentiim 
referens,  is  not  by  itself  evidence  without  its  complementary  doc- 
ument, doeumentum  relatum,  unless  the  absence  of  the  latter 
instrument  be  satisfactorily  accounted  for  and  its  contents 
proved.^  Several  reasons  are  given  for  this  rule.  The  non-pro- 
duction of  the  complementary  writing,  it  is  sometimes  argued,  is 
to   be   regarded  as  a  fraudulent  suppression  of  evidence,  so  as 

^  Infra,  §§  1127-8.  191;    13   L.  J.  Cli.   17:5;  aHirmtHl,  L. 

2  Couplancl   V.    Arrowsmith,  18    L.  11.  7  Ch.  40G  ;  43  L.J.  Ch.  551. 

T.  (N.  S.)   755;  Unthank   v.  Ins.  Co.  ^  Godwin  v.  Francis,  L.  R.  5   C.  P. 

4  Biss.   357  ;  Dunning  v.  Roberts,  35  293;  39  L.  J.  C.  P.  121.    Infra,  §  872. 

Barb.  4G3;  Taylor  t>.  Robt.  Campbell,  <>  Reuss  v.  Pickley,   L.    R.    1    E.k. 

20   Mo.    254;    Crane   v.    Malony,    39  342;  4  H.    &  C.   588;    Powell's  Evi- 

lowa,  39.  dencc,  4th  ed.  380.   See,  as  to  broker's 

8  Baiiman    o.  James,   L.  R.   3   Cli.  books,  supra,  §  75;  infra,  §  872. 

108.  ''  IJeaeh  r.  R.  R.  37  N.  Y.  457. 

*  Nesham  v.   Selbv,  L.  R.  13  Eij.  «  Nov.  119,  cap.  3. 

589 


§  619.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

to  deprive,  on  grounds  of  policy,  the  party  claiming  under  the 
dependent  paper  of  a  standing  in  court.  The  adjudicating  tri- 
bunal, it  is  further  insisted,  has  a  right  to  infer  that  the  sup- 
pressed writing  would,  if  in  evidence,  have  defeated  the  effect  of 
that  produced.  But  these  reasons  go  too  far.  Of  course  when 
the  documentum  referens  designates  the  documentum  relatum 
as  giving  essential  interdependent  features  of  the  transaction  to 
which  the  two  relate,  then  the  first  cannot  be  received  in  evidence 
without  the  other,  because  the  first  is  in  itself  incomplete.  But 
it  is  otherwise  when  the  documentum  referens  professes  to  be 
complete  in  substance,  though  condensed  in  form.^  The  following 
distinction,  however,  is  to  be  noticed.  When  the  documentum 
referens  emanates  from  the  party  against  whom  it  is  offered, 
then  it  is  not  necessary  for  the  party  offering  to  prove  the 
authenticity  and  accuracy  of  the  documentum  relatum^  for  these 
must  be  regarded  as  conceded  by  the  party  making  the  documen- 
tum referens.  Where,  however,  the  documentum  referens  ema- 
nates from  a  third  party,  then  the  validity  of  the  documentum 
relatum  must  be  proved  by  party  offering  the  documentum  ref- 
erens. In  cases  of  certificates  of  public  officers,  this  may  be  done 
by  the  certificate  itself.  But  the  certificate  must  purport  to  be 
complete.^ 

§  619.  In  our  own  law  this  rule  has  been  applied  in  various 
.  J   .  .       relations,^  and  it  is  fully  settled  that  when  one  writing 

Admission  ,  _       ,     -^  " 

of  part  in-  refers  directly  or  indirectly  to  another  for  a  fuller  de- 
mission of  scription,  the  admissibility  of  the  first  writing  involves 
^  °  ^'  the  admissibility  of  the  second.*  So,  also,  the  admis- 
sion of  a  writing  involves  the  admission  of  all  self-disserving 
indorsements  thereon  made  by  the  holder  or  with  his  permission.^ 
Thus,  where  a  note  is  received  in  evidence,  this  brings  in  as  evi- 
dence all  self-disserving  indorsements  of  payment  on  the  note.^ 

^  See  this  topic  fully  discussed  in-  104;  Satterlee  v.  Bliss,  36  Cal.  489; 

fra,  §§  1103-1109.  Jordan  v.    Pollock,   14   Ga.   145,  and 

2  See   L.   14,  C.   iv.    21;  Weiske's  cases  cited  infra,  §§924,  1103-5. 
Rechtslexicon,  xi.  669.    See   fully  su-  ^  Harper  i'.  West,  1   Cranch   C.  C. 
pra,  §  138.  192;  Clarke  v.  Page,  1  Har.  &  J.  318; 

3  See  infra,  §§  924,  1103-5.  Gilpatrick  v.  Foster,  12  111.  355  ;  Lloyd 
*  Nesham  v.  Selby,  cited  supra,  §     i'.  McClure,  2  Greene,  Iowa,  139 ;   Ca- 

617;  Clark  v.    Crego,  47  Barb.   599;  rey  v.  Phil.  Co.  33  Cal.  694. 

Commissioners   v.  Washington  Park,  ^  Plumer  v.  French,  22  N.  H.  450; 

52  N.  Y.  131 ;  Blair  v.  Hum,  2  Rawle,  Brown  v.  Munger,    16  Vt.   12  ;  Flint 
590 


CHAP.  IX.]  DOCUMENTS.  [§  621. 

§  620.  The  most  striking  illustration  of  the  principle  before 
us,  however,  is  in  respect  to  accounts.  It  would  be  onepartof 
manifestly  unfair  to  permit  one  item  in  an  account  to  cLVnoTbe' 
be  read,  and  to  suppress  the  rest.  Hence,  when  a  party  admitted 
puts  in  evidence  the  debits  in  an  account  stated  by  the  the  rest, 
opposite  party,  then  the  opposite  party  has  a  right  to  call  for  the 
reading  of  the  credits.  In  other  words,  a  party,  by  putting  a 
part  of  an  account  in  evidence,  enables  his  opponent  to  put  in 
the  whole.^  Detached  items  in  accounts,  however,  are  not  neces- 
sarily so  connected  that  the  one  drags  in  the  other.^ 

II.    INTERLINEATIONS   AND    ALTERATIONS. 
§  621.  By  the  German  notarial  ordinance  of  1512,  which  has 
acquired  international  force,  and  which  is  the  basis  of   g^,  Roman 
much    subsequent    extra-territorial    adjudication ,  it    is    ^*^'  PF®" 

^  .  sumption 

provided  that  when  a  document  is  complete,  and  has   '« against 

1  11T1C  1'pi  corrections 

been  acknowledged  before  a  notary,  nothing  further  and  inter- 
is  to  be  added  to  it,  even  though  with  the  consent  of 
the  parties  ;  the  object  being  to  give  solemnity  and  finality  to 
the  notarial  act.  It  is  further  required  that  all  interlineations, 
corrections,  or  emendations,  prior  to  acknowledgment,  shall  be 
specially  certified  in  the  attestation  of  the  document ;  and  this 
is  declared  to  be  peculiarly  obligatory  in  cases  where  the  inter- 
lineation or  correction  in  spatio  is  not  by  the  hand  by  which  the 
document  is  engrossed.  The  ordinance,  however,  is  directory,  not 
prohibitory,  containing  no  provision  that  the  validity  of  docu- 
ments is  destroyed  by  the  irregular  corrections  or  emendations. 
A  notary,  indeed,  who  disobeys  the  ordinance,  is  subjected  to  pun- 

V.  Flint,  6  Allen,  34  ;  Saunders  v.  Mc-  v.  Davis,  3  Cranoh  C.  C.  4  ;  Morris  v. 

Arthy,  8  Allen,  42;  Kingman  v.  Tir-  Hurst,  1  Wash.  C.  C.  433  ;  Prince  v. 

rell,  11  Allen,   97;  Long  v.  Kingdon,  Swett,  2  Mass.  5G9;  Com.  v.  Davison, 

25  111.  66;  Hopkins  v.  Chittenden,  36  1  Cush.  33  ;  Walden  v.  Shelburne,  15 

111.  112;  Baldwin  v.  Walden,  30   Ga.  Johns.  R.  409;  Winants  t;.   Sherman, 

829;  Clark  v.  Simmons,  4  Port.   14.  3   Hill,  74;  Low   i-.   Payne,  4   N.    Y. 

See  infra,   §    1103;    Ilarrell    v.    Dur-  24  7;  Dewey  r.  Ilotohkiss,    30   N.  Y. 

ranee,    9  Fla.  490.     And  as  to  effect  497;  Jones  r.  Jones,  4  Hen.  &  M.  447; 

of  indorsements  of  payment   to   take  Freeland    v.    Cocke,    3    Munf.    352 ; 

a  document  out  of  the  statute  of  lira-  Young   v.  Bank,   5  Ala.   179;  Lewis 

itations,  see  supra,  §§  228-30;  infra,  r.  Diile,  17  Mo.  64;  White  v.  Jones, 

§  1135.  14  La.  An.  681. 

^  See  infra,  §§  1103-5,  1135.     Bell  "  Sec  infra,  §§  1135-1140. 

691 


§  621.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

ishment ;  but  whether  the  document  itself  is  thereby  avoided, 
depends  upon  the  bo7ia  fides  of  the  transaction.  The  entering, 
in  the  margin  of  the  document,  or  between  its  lines,  of  words 
evidently  necessary  to  complete  the  sense  of  the  body  of  the 
text,  has  been  regarded  as  not  in  itself  working  invalidity.  It 
is  otherwise,  however,  when  the  interlineation  or  addition  incor- 
porates new  matter,  varjnng  the  sense  of  the  body  of  the  docu- 
ment ;  and  in  such  case,  to  support  the  document  as  thus  cor- 
rected, it  must  be  shown  that  the  correction  had  the  assent  of 
the  party  bound.  It  is  not  to  be  presumed,  without  evidence,  that 
a  party  would  sign  a  solemn  document,  in  which  material  clauses 
are  interlined,  or  written  in  the  margin  ;  and  this  presumption  is 
strengthened  when  the  interlineations  or  additions  are  written 
in  a  different  hand,  or  with  different  ink,  from  the  body  of  the 
text.  Nor  do  such  corrections  carry  with  them  any  evidence  as 
to  their  date.  The  very  fact  that  they  are  corrections  is  a  pre- 
sumption, so  the  Roman  jurists  argue,  that  they  were  written 
after  the  body  of  the  document ;  and  this  negative  proof  is  all 
that  the  instrument  (unless  there  be  a  special  memorandum  as 
to  the  date  of  the  correction)  affords.  Hence,  by  the  present 
practice  of  the  Roman  common  law,  if  on  producing  a  document 
there  should  appear  on  it  unattested  interlineations  or  corrections 
which  are  not  necessary  to  complete  the  sense  of  the  body  of  the 
text,  or  which  are  otherwise  suspicious,  the  party  producing  is 
required  to  sustain  the  genuineness  of  such  interlineations  or 
additions.  In  other  words,  a  party  who  claims  a  right  by  virtue 
of  such  interlineations  or  additions  is  required  to  show  that  they 
were  made  before  execution.  If,  however,  a  right  is  grounded 
on  their  supposed  nullity,  and  the  plaintiff  claims  upon  the  doc- 
ument as  it  stands  without  such  corrections,  and  the  defendant 
pleads  that  such  corrections  are  genuine  and  valid,  it  has  been 
much  discussed  on  which  side  lies  the  burden  of  proof.^  The 
question  is  one  admitting  of  much  subtlety  of  argument,  for, 
adopting  the  maxim,  Adore  non  probaiite,  reus  ahsolvitiir,  it  has 
to  be  determined  who,  as  to  the  point  of  the  validity  of  the  cor- 
rections, is  the  actor.  The  better  solution  is,  that  if  the  correc- 
tions impart  a  new  sense  to  the  document,  and  are  not  mere  in- 
sertions of  omitted  words,  they  are,  prima  facie,  to  be  treated  as 
^  See  Weiske's  Rechtslex.  xi.  676. 

592 


CHAP.  IX.]  DOCUMENTS  :   ALTERATIONS.  [§  622. 

outside  of  the  instrument,  and  hence  tlie  plaintiff  may  treat 
tliem  as  nullities.  In  such  case  the  burden  is  on  the  party  rely- 
ing on  them  to  prove  their  validity. ^ 

§  622.  By  Anglo-American  common  law,  a  material  alteration 
made    in    a  dispositive    document    (i.    e.    a    document    jiaterial 
sought  to  be  enforced  as  disposing  of  rights),  when  such   |'„ade'i'n° 
document  was  either  actuallv  or  constructively  in  the   ^'^positive 

"  "J  document 

control  of  a  party  offering  it  in  evidence,  precludes  avoids  it. 
such  party  from  availing  himself  of  the  document,  if  the  altera- 
tion was  not  made  at  or  before  the  execution  of  the  writing,  or 
by  consent  of  the  parties.^  Were  this  rule  not  maintained,  a 
party  holding  a  document  might  execute  or  connive  at  material 
alterations  in  its  terms,  and  then  take  the  chance  of  the  altera- 
tions being  detected,  with  the  consciousness  that  in  case  of  de- 
tection he  would  be  no  loser,  but  could  fall  back  on  the  instru- 
ment in  its  original  frame.  So  highly  .is  such  spoliation  of 
instruments  reprobated,  that  a  person  who  designedly  alters  in 
his  own  favor  a  note  in  his  hands,  will  not  be  permitted  to  prove 
the  debt  represented  by  the  note  by  other  evidence.^  It  needs 
scarcely  be  added  that  where  an  alteration  is  noted  in  the  attes- 
tation of  the  instrument,  this  accounts  sufficiently  for  the  altera- 
tion, virtually'  incorporating  it  in  the  text.^ 

^  See  on  this  point  Chesley  v.  Frost,  Booth  v.  Powers,  5(J  N.  Y.  22;  Church- 

1  N.  H.  145  ;  Johnson  v.  McGehee,  1  man  v.  Smith,  6  Whart.  R.  146  ;  Hill 

Ala.  18G;  Carson  v.  Duncan,  1  Greene  v.  Cooley,  46    Penn.   St.  209  ;  Diehl 

(Iowa),  466.  V.  Eniig,  65  Penn.   St.   320  ;   ChaHes 

2  Pigot's  case,  11  Rep.  27  ;  Master  v.  Huber,  78  Penn.  St.  448;  Fanners' 

V.    Miller,   4  T.    R.   330;    2  H.    Bl.  Ins.  Co.  v.  Bair,  3  Weekly  Notes,  126; 

141  ;  Powell  v.  Divett,    15  East,  29  ;  Cochran    v.    Nebeker,  48   Ind.  459  ; 

Mollett  V.  Wackerbarth,  5  C.  B.  181  ;  Walters  v.  Short,  10  111.  252  ;  Bene- 

Falmouth  v.  Roberts,  9  M.  &  W.  471  ;  diet  v.  Miner,  58  111.  19  ;  Johnson  v. 

Davidson  v.  Cooper,  11  M.  &  W.  778;  Pollock,    58    111.    181  ;    Comstock   v. 

Parry  v.  Nicholson,  13  M.  &  W.  779  ;  Smith,  26  Mich.  306;  Caldwell  y.  Mc- 

Campbell  v.  Christie,  2  Stark.  R.  64  ;  Dermitt,  17  Cal.  464;  Blake  v.  Lowe, 

Forshaw  v.  Chabert,  3   B.  &  B.  156  ;  3    Desau.     (S.    C;    2G3  ;    Doster    v. 

6  Moore,  369;  CliiTbrd  v.  Parker,  2  M.  Brown,  25  Ga.    24  ;  Washington  Bk. 

&    Gr.    910;  Smith  v.W.  S.  2  Wall.  t).  Ecky,  51   Mo.    272;  Whitesidcs  v. 

219  ;    Sargeant  v.   Pettibone,    1  Aik.  Bank,    10   Bush,   501  ;   Lochnane   v. 

355  ;  Austin   v.  Boyd,   24    Pick.   64  ;  Emmerson,   11   Bush,  69.     See  Kim- 

Doane   v.    Eldridge,    16    Gray,    254  ;  ball  i'.  Lamson,  2  Vt.  138. 
Stoddart  v.  Penniman,  108  Mass.  366;         «  Martendale  v.  Follet,  1  N.  H.  95. 

Draper  v.  Wood,  112  Mass.  315;  Nor-  See  infra,  §  1265. 
wich  Bank  v.  Hyde,  13  Conn.   2  79  ;         *  See   Taylor's    Ev.   §    1616  ;    Re- 

voL.  I.  38  593 


§  624.] 


THE   LAW    OF   EVIDENCE. 


[book  II. 


Document 
not  avoid- 
ed by  an 
immaterial 
alteration. 


§  623.  It  sometimes  happens  that  an  alteration  that  is  merely 
immaterial  is  made  by  a  party  either  intentionally  or 
unintentionally,  though  without  the  other  party's  con- 
sent, after  the  execution  of  a  document.  It  would  be  a 
hard  measure  to  make  such  an  alteration,  innocent  in 
purpose  and  in  effect,  operate  as  an  avoidance  ;  and  hence,  fol- 
lowing in  this  the  Roman  law,  as  already  given,^  our  courts  have 
ruled  that  such  alteration,  when  the  object  of  the  alteration  is 
to  correct  an  obvious  error,  shall  not  be  regarded  as  working 
such  an  avoidance. ^  A  fortiori  is  this  the  case  when  the  altera- 
tion is  merely  formal.^  And  the  same  conclusion  is  reached 
where  the  alteration  goes  to  the  substance,  but  where  the  altered 
document  is  not  relied  on  as  the  foundation  of  a  riglit.^ 

§  624.  Nor,  unless  in  those  cases  where  a  statute  makes  cer- 
Nor  by  al-  ^^^^  formalities  essential,  is  a  document  affected  by  its 
teration  of  alteration,  by  consent  of  the  parties,  subsequent  to  its 
ment  by  execution.  What  they  have  made  they  have  a  right 
to  vary.  Of  course,  where  the  execution  of  the  docu- 
ment must  be  in  a  particular  form,  there  the  alteration,  to  be 
operative,  must  be  in  the  same  form.^  But  unless  there  be  such 
prohibition,  the  parties  may  alter  in  any  way  as  to  which  they 
may  agree.  Thus,  where  the  words  "  or  order,"  which  had  been 
left  out  by  mistake,  were  inserted  by  consent  in  a  note  intended 
to  be  negotiable,  this  was  held   neither  to  avoid  the  note,  nor 


formed  Dutch  Church  v.  Ten  Eyck, 

25  N.  J.  L.  40  ;  Lazier  v.  Westcott, 

26  N.  Y.  146. 

1  Supra,  §  621. 

2  Bluck  V.  Gompertz,  7  Exch.  R. 
862;  Clapham  v.  Cologan,  3  Camp. 
382;  Keane  v.  Smallbone,  17  C.  B. 
179;  Waugh  v.  Bussell,  5  Taunt.  707; 
Major  V.  Hansen,  2  Biss.  195  ;  Her- 
rick  V.  Baldwin,  17   Minn.  209. 

8  Sanderson  v.  Symonds,  1  B.  &  B. 
426  ;  4  Moore,  42  ;  Clapham  v.  Colo- 
gan, 3  Camp,  382;  Waugh  v.  Bussell, 
5  Taunt.  707  ;  Keane  v.  Smallbone, 
17  C.  B.  179  ;  Aldous  v.  Cornwell,  L. 
R.  3  Q.  B.  573  ;  Smith  v.  Crooker, 
5  Mass.  538  ;  Brown  v.  Pinkham,  18 
Pick.    172  ;    AVoolfolk    v.   Bank,    10 

594 


Bush,  504  ;  Allen  v.  Sales,  56  Mo. 
28. 

*  Hutchins  v.  Scott,  2  M.  &  W. 
809 ;  Falmouth  v.  Roberts,  9  M.  &  W. 
471  ;  Davidson  v.  Cooper,  11  M.  & 
W.  800 ;  Agr.  Cattle  Ins.  Co.  v.  Fitz- 
gerald, 16  Q.  B.  432  ;  Ward  v.  Lum- 
ley,  5  H.  &  N.  87  ;  Cutts  i>,  U.  S.  1 
Gall.  69;  U.  S.  v.  Spalding,  2  Mason, 
478.  As  to  distinction  between  evi- 
dential and  dispositive  documents,  see 
infra,  §§  923,  1082. 

6  Jacob  V.  Hart,  6  M.  &  S.  142  ; 
Walter  v.  Cubley,  2  C.  &  M.  151  ; 
Stevens  v.  Lloyd,  M.  &  M.  292;  Wal- 
bridge  v.  Ellsworth,  44  Cal.  353. 
Infra,  §  901. 


CHAP.  IX.]  DOCUMENTS  :    ALTERATIONS.  [§  625. 

to  require  the  imposition  of  a  new  stamp. ^  The  same  rule 
applies  where  the  alteration  is  one  in  conformity  with  local  cus- 
tom, as  where  the  custom  is,  when  a  draft  is  taken  up  by  the 
acceptors,  to  erase  all  the  names  therein.^ 

§  625.  The   period  after  which   alterations,   not  mutual,  are 
fatal,  is  that  of  the  final  delivery  of  the  document.    Very 
often  a  document  may  require  the  signature  of  several    terations 

,     J.  .  1      .  1    •  c  made  dur- 

successive  parties  before  its  completion,  and  it  so,  an  ing  nego- 
alteration  may  be  made,  without  invalidating  it  at  any 
time  before  its  final  delivery,  provided  this  does  not  affect  the 
rights  of  persons  who  have  executed  it  before  the  alteration. ^ 
In  other  words,  an  alteration  after  A.,  B.,  and  C.  have  signed, 
though  made  without  their  consent,  may  be  good  as  to  E.  and  F., 
subsequent  signers,  whom  it  materially  affects,  and  good  also  as  to 
A.,  B.,  and  C,  prior  signers,  whom  it  does  not  materiall}^  affect.* 
So  an  alteration  may  be  made  of  a  document  delivered  only  as 
an  escrow,  provided  the  rights  of  prior  parties  without  notice 
are  not  thereby  affected ;  ^  or,  generally,  as  to  a  grantor  who  still 
retains  control  of  a  deed,  either  actually  or  constructively,  and 
who  may  be  understood  to  reserve  the  right  to  alter  the  instru- 
ment, even  though  signed  by  himself,  at  any  time  before  it 
passes  from  him.^  What  is  thus  said  as  to  deeds  has  been 
applied  to  marriage  settlements,'^  and  to  bonds. ^  In  fine,  wher- 
ever several  parties,  as  in  insurance  policies  and  composition 
deeds,  join  in  a  written  instrument,  the  instrument  is  not  re- 
garded as  completed,  so  as  to  make  it  open  to  the  application  of 

1  Taylor's  Evidence,  §  1620,  citing  Steward,  14  M.  &  W.  47.  See  Little 
Byrom  t>.  Thompson,  11  A.  &  PI  31  ;  v.  Herndon,  10  AVall.  26;  Walls  v. 
Hameline  v.  Bruck,  9  Q.  B.  306;  Far-     McGee,  4  Harr.  (Del.)  108. 

quliar  v.  Southey,  M.  &  M.  14  ;  Ea-  ^  AVest  v.  Steward,  14  M.  &  W.  49; 

gleton   V.   Gutteridge,    11    M.    &    W.  Gudgen  v.  Bassett,  6  E.  &  B.  9S6. 

465;    Vose  v.  Dolan,  108  Mass.  153;  ^  Jones  v.  Jones,   1    C.  &  M.  721  ; 

Plank  R.  R.  v.  Wetsel,  21  Barb.  56.  3   Tyr.  800  ;  Doe  v.  Knights,  5  B.  & 

As  to  filling  up  blanks,  see  infra,  §  C.  671  ;  Xenos  v.  Wickham,  L.  R.  2 

632.  H.  L.  296;  Richards  v.  Lewis,  11   C. 

2  O'Flalierty,  in  re,  7  La.  An.  640  ;  B.  1046  ;  Little  v.  Herndon,  10  Wall, 
and  see  infra,  §  632.   .  26. 

8  Hlake  v.  Coleman,  22  Wise.  415;  ''  Jones  v.  Jones,   1    C  &  M.  721  ; 

Bernstien  v.  Ricks,  20  La.  An.  409.  3    Tyr.    890  ;    Taylor's    Evidence,   § 

*  Davidson  v.  Cooper,  11  M.  &  W.  1630. 

802,  by  Lord  Abinger;  Taylor's   Ev-  »  Matson   v.  Booth,    5   M.    &  Sel. 

idence,   §    1628,  citing  also   West    r.  223. 

595 


§  626.]  THE   LAW   OF  EVIDENCE.  [BOOK  II. 

the  rule  before  us,  until  executed  by  all  the  parties.  Until  so 
executed,  alterations  may  be  made  without  invalidating  the  writ- 
ing as  to  the  parties  previously  executing,  provided  nothing  in 
the  alteration  affects  their  rights.^ 

§  626.  As  to  bills  and  notes,  the  rule  is,  that  a  note  or  bill 
becomes  closed  to  alteration  as  soon  as  it  is  available, 

As  to  ne- 
gotiable      though  not   before.     This  question  arises  in   England 

chiefly  under  the  stamp  laws ;  and  under  these  acts  it 
has  been  held  generally  that  every  material  alteration,  whether 
made  before  or  after  acceptance,  or  with  or  without  consent,  will 
invalidate  a  bill,  as  soon  as  such  bill,  whatever  may  be  its  char- 
acter as  to  original  consideration,  passes  to  a  party,  who,  as  a 
bond  fide  holder  for  a  valuable  consideration,  is  entitled  to  sue 
any  prior  party.^  On  the  other  hand,  an  unindorsed  bill  for 
value  is  not  considered  complete  until  it  is  accepted  and  returned 
to  the  payee.3  A  fortiori,  an  accommodation  bill  is  not  in  this 
view  complete,  and  so  far  as  concerns  parties  with  notice,  may 
be  altered,  under  the  stamp  act,  after  it  has  been  drawn,  ac- 
cepted, and  indorsed.*  But  so  far  as  concerns  either  of  the 
parties,  it  cannot,  of  course,  as  against  such  party,  be  altered  at 
any  time  after  he  has  signed  it,  so  as  to  bind  him  to  terras  he 
did  not  himself  adopt.^     In  an  English  case  decided  in  1876,  the 

1  Taylor's  Evidence,  §  1622,  citing  the  instrument,  or  if  it  be  made  subse- 

Davidson  v.  Cooper,  11  M.  &  W.  802,  quently  to  its  execution,  with  tliepriv- 

per  Lord  Abinger ;  West  v.  Steward,  ity  of  tlie  parties,  and  there  be  no  fraud 

14  M.  &  W.  47  ;  Doe   v.  Bingham,  4  on,  or  evasion  of,  the  stamp  laws,  its 

B.  &  A.  675.  validity  may  be  maintained.     But  if 

^  Outhwaite   v.    Lumlcy,  4    Camp,  the  alteration  be  material ;  Gardner  u. 

179;    Walton    v.  Hastings,   4    Camp.  Walsh,  5  E.  &  B.  83,  overruling  Cat- 

223  ;  Chitty  on  Bills,   186  ;  Taylor's  ton  v.  Simpson,  8   A.  &  E.  136  ;  as  of 

Evidence,  §  1629.  the  date;  Clifford  v.  Parker,  2  M.  & 

8  Ibid.;  Kennerly  y.  Nash,  1  Stark.  Gr.  905;  or  amount,  or  time   of  pay- 

R.  452;  Sherrington  v.  Jermyn,  3  C.  ment  of  a  bill  of  exchange  be  altered; 

&  P.  374.  Warrington  v.  Early,  2  El.  &  Bl.  763; 

*  Tarleton  v.  Shingler,  7  C.  B.  812;  or  a  joint  responsibility  converted  into 

Doe  i;.  Bingham,  4  B.  &  A.  6  75.  a  joint  and  several  responsibility;   Al- 

^  As  to  filling  up  blanks  in  nego-  derson  v.  Langdale,  3  B.  &  Ad.  660  ; 

tiable  paper,  see  infra,  §  632.  the  instrument  will  be  void,  unless  the 

As  to  burden  of  proof  in  such  cases,  alteration  was  made  by  consent  of  the 

see  infra,  §  629.  parties;  and  equally  so,  although  made 

"  So  far  as  concerns  negotiable  pa-  with  consent,  if  the   stamp  laws  are 

per,  if  an  alteration  appear  to  have  infringed.     Perring  v.  Hone,  4  Bing. 

been   made    contemporaneously   with  28.    So,  where  a  bill  has  been  altered, 

596 


CHAP.  IX.] 


DOCUMENTS  :  ALTERATIONS. 


[§  626. 


evidence  was  that  a  person  intrusted  with  a  check  by  the  payee 
to  pay  into  a  bank,  absconded  with  it,  and  after  altering  the 
date  from  the  2d  of  March  to  the  26th  of  March,  passed  it  to  the 
plaintiff  for  value.  The  check  was  not  paid,  and  the  plaintiff, 
who  had  not  been  guilty  of  any  negligence  in  taking  the  check, 
sued  the  drawer.  It  was  held  that  the  alteration  invalidated 
the  check ;  and  that  the  circumstance  that  the  plaintiff  had 
not  been  guilty  of  negligence  in  taking  it  was  immaterial.^ 
Negotiable  paper,  even  in  the  hands  of  an  innocent  holder,^ 


■with  the  privity  of  an  indorser  and 
his  indorsee,  but  without  the  privity 
of  the  acceptor,  the  latter  is  dis- 
charged. Master  v.  Millor,  1  Smith, 
L.  C.  796,  and  notes.  The  same 
rule  holds  when  the  alteration  is  acci- 
dental; Burchfield  v.  Moore,  3  E.  & 

B.  G83;  or  by  a  stranger  without  the 
privity  of  either  party.  Davidson  v. 
Cooper,  11  M.  &  ^Y.  778;  S.  C.  13 
M.  &  W.  352;  Crookwit  v.  Fletcher, 
1  H.  &  N.  2D3.  Parol  evidence  may 
be  called  to  show  that  a  variation  be- 
tween a  bought  note  and  a  sold  note 
is  immatei-ial.     Holmes  v.  Mitchell,  7 

C.  B.  N.  S.  361."  Powell's  Evidence 
(4th   ed.),  433. 

1  Vance  v.  Lowther,  L.  R.  1  Ex.  D. 
176. 

2  In  Brown  v.  Reed,  Sup.  Ct.  of 
Penn.  1876,  2  Weekly  Notes,  231,  it 
was  held  that  a  promissory  note,  ne- 
gotiable in  form,  is  not  rendered  in- 
valid in  the  hands  of  a  ftond^(/e  hold- 
er, because  shown  to  have  been  de- 
tached or  torn  from  another  paper 
containing  a  contract  between  the 
original  parties  to  it,  the  terms  of 
which  would,  if  known  to  the  holder, 
have  debarred  him  from  suing.  It 
was,  however,  ruled  that  the  muti- 
lation oi' a  written  contract,  by  cutting 
or  tearing  off'  a  portion  of  it,  so  as  to 
make  the  sepai'ated  ])ortion  resemble 
a  promissory  note,  is  a  forgery,  an<l, 
unless  negligence  in  the  maker,  in 
signing  such  an  instrument,  be  shown, 


a  holder,  though  bona  fide,  and  with- 
out notice,  cannot  recover  thereon. 

The  principle  of  the  cases,  said 
Sharswood,  J.,  "  is,  that  if  the  maker 
of  a  bill,  note,  or  check,  issues  it  in 
such  a  condition  that  it  may  easily  be 
altered  without  detection,  he  is  liable 
to  a  bond  fide  holder  who  takes  it  in 
the  usual  course  of  business,  before 
maturity.  The  maker  ought,  surely, 
not  to  be  discharged  from  his  obliga- 
tions by  reason,  or  on  account  of,  his 
own  negligence  in  executing  and  is- 
suing a  note  that  invited  tamjtering 
with.  These  cases  did  not  decide 
that  the  maker  would  be  bound  to  a 
bond  fide  holder  on  a  note  fraudu- 
lently altered,  however  skilful  that 
alteration  might  be,  provided  that  he 
had  himself  used  ordinary  care  and 
precaution.  He  would  no  more  be 
responsible  upon  such  an  altered  in- 
strument than  he  would  upon  a  skil- 
ful forgery  of  his  handwriting.  The 
princijjle  to  which  I  have  atlverted  is 
well  expressed  in  the  opinion  of  the 
court,  in  Zimmerman  v.  Rote,  75 
Penn.  St.  (25  P.  F.  Smith),  191.  It 
is  the  duty  of  the  maker  of  the  note 
to  guard  not  only  himself  but  the  pub- 
lic against  frauds  and  alterations,  by 
refusing  to  sign  negotiable  paper  made 
in  such  a  form  as  to  admit  of  fraud- 
ulent practices  upon  them  with  ease 
and  without  ready  detection.  But 
would  the  facts  offered  to  be  given  in 
evidence,  and  rejected  by  the   court 

597 


§  626.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


has  been  held  to  be  invalidated,  so  far  as  concerns  the  liability  of 
parties  not  consenting,^  by  the  adding,  after  issue,  of  an  addi- 
tional maker's  name  to  a  joint  and  several  note,^  by  the  convert- 
ing a  joint  into  a  joint  and  several  indebtedness,^  by  the  erasure 
or  excision  of  the  signature  of  one  of  several  co-promisors  in  a 
joint  and  several  note,*  by  changing  one  place  of  payment  for 


below,  have  brought  the  case  within 
the  line  of  these  decisions  ?  "We  think 
not.  In  Phelan  v.  Moss,  and  in  Zim- 
merman V.  Rote,  the  party  signed  a 
perfect  promissory  note,  on  the  mar- 
gin of,  or  underneath  which,  was  writ- 
ten a  condition  which,  as  between  the 
parties,  was  a  part  of  the  contract, 
and  destroyed  its  negotiability.  But 
it  could  easily  be  separated,  leaving 
the  note  perfect,  and  no  one  would 
have  any  reason  to  suspect  that  it  had 
ever  existed. 

"  In  Garrard  v.  Haddan,  67  Penn. 
St.  (17  Smith)  82,  the  note  was  ex- 
ecuted  with  a  blank,  by  which   the 
amount   might  be  increased  without 
any  score  to  guard  against  such  an  al- 
teration. In  all  these  cases  the  defend- 
ants put  their  names  to  what  were  on 
their  faces  promissory  negotiable  notes. 
In  the  case  before  us,  on  the  defend- 
ant's offer,  he  did  not  sign  a  promissory 
note,  but  a  contract  by  which  he  was 
to  become  an  agent  for  the  sale  of  a 
washing  machine.     It  was,  indeed,  so 
cunningly  framed  that  it  might  be  cut 
in  two  parts,  one  of  which,  with  the 
maker's  name,  would  then  be  a  per- 
fect negotiable  note.     Whether  there 
was  negligence  in  the  maker  was  clearly 
a  question  of  fact  for  the  jury.     The 
line  of  demarcation  between  the  two 
parts  might  have  been  so  clear  and 
distinct,  and  given  the  instrument  so 
unusual   an   appearance  as  ought  to 
have   arrested   the   attention   of   any 
prudent  man.     But  it  may  have  been 
otherwise.    If  there  was  no  negligence 
in  the  maker,  the  good  faith  and  ab- 
sence of  negligence  on  the  part  of  the 
698 


holder  cannot  avail  him.  The  alter- 
ation was  a  forgery,  and  there  was 
nothing  to  estop  the  maker  from  al- 
leging and  proving  it.  The  ink  of  a 
writing  may  be  extracted  by  a  chem- 
ical process  so  that  it  is  impossible 
for  any  but  an  expert  to  detect  it ; 
but  surely,  in  such  a  case,  it  cannot 
be  pretended  that  the  holder  can  rely 
upon  his  good  faith  and  diligence." 
See,  also,  Lochnane  v,  Emmerson,  11 
Bush,  69. 

1  See  Chitty  on  Bills,   181-185;  1 
Smith's  L.  C.  776,  811. 

2  Gardner  v.  Walsh,  5  E.  &  B.  63, 
83;  overruling   Catton   v.    Simpson,  8 
A.  &  E.   136  ;  3  N.  &  P.  248,   S.  C. 
See  Gould  v.  Coombs,  1  Com.  B.  543; 
Ex  parte  Yates,  In  re  Smith,  27  L.  J. 
Bank'y,  9;  2  De  Gex  k  J.  191,  S.  C; 
McVean  v.  Scott,  46  Barb.  379;  Wal- 
lace V.  Jewell,   21   Oh.  (N.   S.)   163; 
Haskell  v.  Champion,  30  Mo.  136.    It 
has,  however,  been  held  in  New  York, 
that  the  adding  a  new  name  where 
there  is  but  one  maker,  does  not  dis- 
charge the  maker.     Partridge  r.  Col- 
by, 19  Barb.  248;  McVean  v.    Scott, 
46   Barb.   379;  Muir  v.  Demaree,  12 
Wend.  468;  McCaughey  v.  Smith,  27 
N.  Y.  39  ;  Miller  v.  Finley,  26  Mich. 
249.     See  2  Pars.  Notes,  559;  2  Dan. 
on  Neg.  Inst.  §  1388. 

2  Perring  v.  Hone,  4  Bing.  28;  12 
Moore,  135  ;  2  C.  &  P.  401,  S.  C. 

*  Mason  v.  Bradley,  11  M.  &  W. 
590.  See  Nicholson  v.  Revill,  4  A.  & 
E.  675;  6  N.  &  M.  192,  S.  C.  :  Cum- 
berland Bk.  V.  Hall,  1  Halst.  215 ; 
SeeMahaive  Bk.  v.  Douglass,  31  Conn 
170  ;  Davis  v.  Coleman,  7  Ired.  424. 


CHAP.  IX.] 


DOCUMENTS  :   ALTERATIONS. 


[§  626. 


another,^  by  altering  or  limiting  the  relations  of  the  parties ;  ^ 
by  changing  the  date  ;  ^  by  inserting  a  specific  rate  of  interest,^ 
by  changing  the  time  of  payment,^  by  the  introduction  of  a 
place  of  payment,  though  the  acceptance  still  remains  a  general 
acceptance,^  by  the  alteration  of  the  medium  or  currency  of  pay- 
ment ;  ''  by  the  addition  of  a  seal ;  ^  by  adding  witnesses  in  all 
cases  where  by  the  lex  loci  solutionis^  or  lex  fori,  this  changes  the 
degree  of  the  obligation ;  ^  and  by  in  any  way  modifying  the 
consideration.^*' 


*  Tidmarsh  v.  Grover,  1  M.  &  Sel. 
735  ;  R.  V.  Treble,  2  Taunt.  329  ; 
S.  C.  R.  &  R.  164;  Nazro  v.  Fuller, 
24  Wend.  374  ;  Walker  v.  Bk.  13 
Barb.  637;  Sudler  v.  Collins,  2  Houst. 
538. 

2  Knill  V.  Williams,  10  East,  431. 

8  Master  v.  Iklille,  4  T.  R.  320;  2 
H.  Bl.  140,  S.  C;  Outhwaite  t>.  Lunt- 
ley,  4  Camp.  1 79,  per  Ld.  Ellenbor- 
ough  ;  Walton  v.  Hastings,  Ibid.  223; 
1  Stark.  R.  215,  S.  C.  per  Ibid.  ; 
Cardwell  y.  Martin,  9  East,  180;  Wood 
V.  Steele,  6  Wall.  80;  Stephens  v. 
Grabani,  7  S.  &  R.  505  ;  Owings  v. 
Arnot,  33  Mo.  406  ;  Britton  v.  Dier- 
ker,  46  ]\Io.  591. 

*  Warrington  v.  Early,  2  E.  &  B. 
763  ;  Waterman  i'.  Vose,  43  Me.  504 ; 
Fay  V.  Smith,  1  Allen,  477  ;  McGrath 
V.  Clark,  56  N.  Y.  34;  Neff  v.  Hor- 
ner, 63  Penn.  St.  327;  Patterson  v. 
McNecley,  16  Oh.  St.  348;  Hart  v. 
Clouser,  30  Ind.  210 ;  Darwin  v.  Rip- 
pey,  63  N.  C.  318. 

6  Bowman  v.  Nichol,  5  T.  R.  537; 
Alderson  v.  Langdale,  3  B.  &  Ad.  660; 
Bathe  V.  Taylor,  15  East,  412;  Miller 
V.  Gilleland,  19  Penn.  St.  119;  Lesler 
V.  Rogers,  18  B.  Mon.  528  ;  Lewis  v. 
Kramer,  3  Md.  365.  See  Thomson 
on  Bills,  111;  Daniels  on  Neg.  Pap. 
§  1377. 

6  Taylor  v.  Moseley,  1  I\I.  &.  Rob. 
439,  n.,  per  Ld.  Lyndhurst,  C.  B.;  6 
C.  &  P.  273,  S.  C. ;  Crotty  v.  Hodgos, 
4  M.  &  Gr.  561;  5  Scott  N.  R.   221, 


S.  C.  ;  Cowie  v.  Halsall,  4  B.  &  A. 
197;  3  Stark.  R.  36,  S.  C;  Macin- 
tosh V.  Hay  don,  Ry.  &  M.  362,  per 
Abbott,  C.  J.;  Burchfield  v.  Moore,  3 
E.  &  B.  683  ;  Desbrowe  v.  Wetherby, 
1  M.  &  Rob.  438,  per  Tindal,  C.  J.; 
S.  C.  nom.  Desbrow  v.  Wetherley,  6 
C.  &  P.  758. 

'  Daniels  on  Neg.  Inst.  349;  Mar- 
tendale  v.  Follett,  1  N.  H.  95;  Ste- 
vens V.  Graham,  7  S.  &  R.  505  ;  Dar- 
win V.  Rippey,  63  N.  C.  318. 

8  U.  S.  V.  Linn,  1  How.  104  ;  Mar- 
shall t'.  Gougler,  10  S.  &  R.  164. 

9  Eddy  v.  Bond,  19  Mo.  461 ;  Brack- 
ett  V.  Mountfort,  12  Me.  72. 

10  Knill  V.Williams,  10  East,  413; 
Hereth  v.  Bk.  34  Ind.  380  ;  Low  v.  Ar- 
grove,  30  Ga.  129  ;  Bank  of  Commerce 
V.  Barrett,  38  Ga.  126.  See  Parsons 
Notes  &  Bills,  562  ;  Daniels  Neg.  Pap. 
§  1391. 

As  to  non-negotiable  instruments,  it 
has  been  held  that  the  instrument  is 
vitiated  where  a  sold  note  was  altered, 
without  the  knowledge  of  the  pur- 
chaser, by  inserting  an  additional  term 
into  the  contract.  Powell  v.  Divett,  15 
East,  29  ;  Mollett  v.  Wnckerbarth,  6 
Com.  B.  181.  And  so  where  an  agree- 
ment was  apparently  converted  into 
a  deed,  by  aflixing  seals  to  the  signa- 
tures of  the  parties.  Davidson  v. 
Cooper,  11  M.  &  W.  784;  13  M.  & 
W.  353,  5.  C.  in  Ex.  Ch.  And  gen- 
erally an  alteration,  made  subsecjuent 
to  the  investment  of  rights,  cannot  dis- 

699 


§  628.] 


THE    LAW    OF   EVIDENCE. 


[book  II. 


Alteration 
by  stran{,fer 
does  not 
avoid  in- 
strument 
as  to  inno- 
cent and 
non-neg- 
ligent 
holder. 


§  627.  Whether  an  alteration  of  a  document  made  by  a 
stranger  vitiates  the  document  so  far  as  concerns  the 
party  in  whose  custody  the  document  at  the  time  was, 
has  been  much  discussed.  In  England,  it  has  been  held 
that  the  document  becomes  thereby  avoided  as  to  such 
party,  even  though  lie  was  entirely  ignorant  of  the  alter- 
ation, and  though  it  was  done  by  an  entire  stranger. ^ 
It  was  said  by  Lord  Denman,^  that  in  such  case  the 
"  party  who  may  suffer  has  no  right  to  complain,  since  there  can- 
not be  any  alteration  except  through  fraud  or  laches  on  his  part." 
As  thus  guarded,  the  doctrine  may  be  sustained  ;  since  it  does 
not  go  to  avoid  documents  which  were  altered  by  a  stranger 
without  any  laches  on  the  part  of  the  custodian.  That  an  altera- 
tion so  effected  b}'^  a  stranger  does  not  avoid  a  document  as  to 
an  innocent  and  non-negligent  holder,  has  been  expi-essly  ruled 
in  the  United  States.^  So  the  cancellation  of  a  check  by  acci- 
dent does  not  avoid  the  check.* 

§  628.  When  a  document  is  offered  which  has  been  con- 
fessedly altered  by  a  stranger  in  a  material  matter  since  its 
execution,  the  person  holding  the  document  being   in   no  way 


turb  such  rights.  Broadwell  v.  Stiles, 
3  Halst.  58;  Walls  z;.McGee,4  Harr. 
(Del.)  108. 

^  Powell    V.    Divett,   15   East,    29 
MoUett  V.  Wackerbarth,  5  C.  B.  181 
Davidson  v.  Cooper,  11  M.  &  W.  778 
S.    C.  13  M.  &  W.  343;  Crookwit  v. 
Fletcher,   26  L.  J.  Ex.  153;  Bank  of 
Hindostan  v.   Smith,   36  L.  J.   C.  P. 
241;  Forshaw  v.  Chabert,  3  B.  &  B. 
158;  6  Moore,  396;  Fairlie  v.  Christie, 
7  Taunt.  416.    See  Vance  v.  Lowther, 
L.  R.  1  Ex.  D.  176. 

2  13  M.  &  W.  352. 

8  U.  S.  D.  Spalding,  2  Mason,  482; 
Broadwell  v.  Stiles,  3  Halst.  58;  Walls 
r.McGee,4  Harr.  (Del.)  108;  Marshall 
t).  Gougler,  10  S.  &  R.  164;  State  v. 
Berg,  50  Ind.  496.  See,  as  to  Eng- 
lish cases  conflicting  with  Davidson  v 
Cooper,  Argoll  v.  Cheney,  Palm.  402; 
Henfree  v.  Bromley,  6  East,  309; 
Hutchins  v.  Scott,  2  M.  &  W.  814. 

600 


*  Raper  v.  Birkbeck,  15  East,  17; 
Novelli  V.  Rossi,  2  B.  &  Ad.  757; 
Warwick  v.  Rogers,  5  M.  &  Gr.  340. 
In  Ireland,  an  alteration  by  a  stranger 
does  not  avoid  a  writing.  Surney  v. 
Barry,  Jones,  109,  cited  Taylor's  Ev. 
§  1626. 

By  the  Civil  Code  of  New  York,  in 
a  clause  adopted  in  several  other 
states,  "  the  party  producing  a  writ- 
ing as  genuine  which  has  been  altered, 
or  appears  to  have  been  altered,  after 
its  execution,  in  a  part  material  to  the 
question  in  dispute,  must  account  for 
the  appearance  or  alteration.  He  may 
show  that  the  alteration  was  made  by 
another  without  Ms  concurrence,  or  other- 
wise properly  or  innocently  made,  or  that 
the  alteration  did  not  change  the  mean- 
ing or  language  of  the  instrument.  If 
he  do  that,  he  may  give  the  writing  in 
evidence,  but  not  otherwise." 


CHAP.  IX.]  DOCUMENTS  :    ALTERATIONS.  [§  629. 

concerned  in  the  alteration,  we  can  conceive  of  four  distinct 
phases  in  which  the  case  may  be  presented.  The  first  is  when 
the  alteration  was  through  the  negligence  of  the  party  bound  by 
the  document,  in  which  case  his  liability,  so  far  as  concerns  the 
instrument  in  its  original  shape,  is  not  affected.  The  second  is 
when  the  alteration  is  traceable  to  the  negligence  of  the  holder 
of  the  document,  in  which  case  he  must  bear  the  consequence 
of  his  negligence.  The  third  phase  is  where  the  document  is  al- 
tered without  the  negligence  or  fault  of  either  party  (e.  g.  where 
a  writing  is  deposited  in  the  proper  public  registry,  and  is  there 
defaced  or  altered  by  accident  or  mischief),  in  which  case,  as  be- 
tween the  original  parties,  it  would  be  absurd  to  say  that  the 
party  bound  by  the  instrument  is  released.^  The  fourth  phase  is 
where  a  negotiable  instrument  is  materially  altered  by  an  inter- 
mediate party  holding  it,  there  being  no  negligence  or  other  cul- 
pability on  the  part  of  the  party  suing  on  it,  or  by  the  party 
sued.  In  such  case  a  party  taking  the  paper  after  its  alteration 
takes  substantially  forged  paper,  and  cannot  recover.^ 

§  629.  An   interesting   point  of   practice  here  comes   up,   in 
which  a  right  conclusion  has  been  based  upon  reasoning 
somewhat  artificial.     A  party  offers  in  evidence  a  writ-    instru- 
ten  instrument  in  which  there  is  a  manifest  alteration.    ^^ii\>s^ml-^' 
Was  such  an  alteration  made  before  or  after  execution?   f""'!'''""  '3 

that  altera- 

If  before  execution,  on  the  principle  heretofore  stated,    tion  was 

•II'  T»  1  made  be- 

lt avoids  the  instrument.     But  on  whom  rests  the  bur-   fore  execu- 

den,  in  this  respect,  to  prove  the  period  of  alteration  ? 
If  there  is  nothing  suspicious  on  the  face  of  the  instrument,  but 
the  alteration  is  one  which  appears  to  accord  with  the  object  of 
the  instrument,  then  we  should  say  that  the  burden  of  proving 
bad  faith  in  this  respect  is  on  the  party  asserting  bad  faith.^  In 
England,  the  conclusion  was  once  based  upon  the  assumption  that 
as  forgery  is  a  crime,  and  as  a  crime  is  not  to  be  presumed,  there- 
fore spoliation  amounting  to  forgery  is  not  to  be  presumed.  We 
need  not,  however,  invoke  this  principle,  which  can  only  have 
occasional  application,  to  sustain  tlie  conclusion  here  reached. 
It  is  sufficient  for  us  to  say  that  when,  in  a  written  contract  inter 

1  State  V.  Berg,  50  Ind.  496.  8  Supra,  §§  366,  618;  infra,  §§  1313, 

2  Vance  v.  Lowther,  L.  R.  1  Ex.  D.      1320. 
176.      Supra,  §  626. 

601 


§  629.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


vivos^  alterations  or  interlineations  appear,  about  which  altera- 
tions or  interlineations  there  is  nothing  suspicious,  the  presump- 
tion is  that  they  were  made  before  the  execution  of  the  instru- 
ment ;  and  hence,  the  burden  of  proving  that  they  were  made 
after  execution  falls  on  the  assailant  of  the  instrument.  The 
question  of  sjjoliation  then  goes  to  the  jury  as  a  question  of  fact.^ 
As  to  negotiable  paper,  it  has  been  said  that  the  law  makes  no 
presumption,  but  leaves  the  question  of  prejudicial  alteration  to 
be  determined  by  the  jury  on  all  the  evidence  of  the  case,  though 
when  such  alteration  is  apparent,  and  is  favorable  to  the  party 
offering  the  note,  then  he  must  bear  the  burden  of  explanation.^ 


^  Siinmonds  v.  Rudall,  1  Sim.  N.  S. 
136;  R.  V.  Gordon,  Pearce  &  D.  586; 
Doe  V.  Cataraore,  16  Q.  B.  745;  Booth- 
by  V.  Stanley,  34  Me.  515  ;  Beaman  v. 
Russell,  20  Vt.  213;  Davis  v.  Jenney, 
1  Mete.  (Mass.)  221;  Vose  v.  Dolan, 
108  Mass.  155;  Bailey  v.  Taylor,  11 
Conn.  531;  Sayre  v.  Reynolds,  5  N. 
J.  L.  737;  Simpson  v.  Stackbouse,  9 
Penn.  St.  186;  Stevens  v.  Martin,  18 
Penn.  St.  101;  Farmers'  Ins.  Co.  v. 
Blair,  3  Weekly  Notes,  126  ;  Ramsey 
V.  McCue,  21  Grat.  349;  Munroe  v. 
Eastman,  31  Mich.  283;  McCormick 
V.  Fitz  morris,  39  Mo.  34  ;  Brown  v. 
Phelon,  2  Swan,  629  ;  Bumpass  v. 
Timms,  3  Sneed,  459;  Wells  v.  Moore, 
15  Tex.  521;  Muckleroy  v.  Bethany, 
27  Tex.  551. 

Ou  this  point  the  following  opinions 
will  be  of  interest :  — 

"Exception  was  taken  to  the  intro- 
duction of  the  chattel  mortgage  in  evi- 
dence, on  the  ground  that  a  suspicious 
alteration  appeared  on  its  face  which 
was  not  explained.  The  judge  held 
an  explanation  not  necessary.  The 
original  mortgage  is  not  produced  here, 
and  we  cannot,  therefore,  inspect  it. 
We  cannot  presume  error,  and  must 
therefore  suppose  that  any  alteration 
apparent  on  its  face  was  not,  in  the 
opinion  of  the  circuit  judge,  suspicious 
in  appearance,  and,  if  so,  he  ruled 
correctly  in  receiving  it  in  evidence. 

602 


Unless  they  are  suspicious  in  appear- 
ance, alterations  and  interlineations 
are  presumed  to  have  been  made  be- 
fore the  execution  of  the  instrument, 
not  afterwards."  Sirrine  v.  Briggs,  31 
Mich.  R.  445.  The  question  is  for  the 
jury.    Jourden  v.  Boyce,  33  Mich.  302. 

"  A  minor  objection  below  was  to 
the  admission  of  one  of  the  patents, 
on  the  ground  of  an  erasure.  The 
court  left  the  question  to  the  jury, 
which  was  quite  as  favorable  a  ruling 
as  the  defendant  could  ask.  In  the 
absence  of  any  proof  on  the  subject, 
the  presumption  is  that  the  correction 
was  made  before  the  execution  of  the 
deed.  In  a  recent  case  in  the  queen's 
bench.  Lord  Campbell,  chief  justice, 
in  delivering  the  opinion  of  the  coui't, 
after  referring  to  the  note  in  Har- 
grave  and  Butler's  Coke  Littleton 
2256,  where  this  rule  was  asserted, 
observed  :  '  This  doctrine  seems  to 
us  to  rest  on  principle.  A  deed  can- 
not be  altered  after  it  is  executed  with- 
out a  fraud  or  wrong ;  and  the  pre- 
sumption is  against  fraud  or  wrong.' 
The  cases  are  not  uniform  in  this 
country,  but  the  most  stringent  leave 
the  question  to  the  jury.'  "  Nelson,  J., 
Little  V.  Herndon,  10  Wall.  31.  See, 
generally  to  same  effect,  Milliken  v. 
Marlin,  66  III.  13. 

2  Johnson  v.  Marlboro,  2  Stark.  R. 
278;  Bishop  v.  Chambre,  M.  &  M.  116; 


CHAP.  IX.] 


DOCUMENTS  :    ALTERATIONS. 


[§  630. 


But  where  the  execution  of  a  note  as  altered  is  denied,  the 
burden  is  on  the  plaintiff  to  prove  the  note  to  be  the  defendant's. ^ 
§  630.  It  has  been  ruled  in  England,  that  in  the  case  of  wills, 
the  presumption  (under  the  provision  of  the  statute  of  otherwise 
wills  requiring  alterations  to  be  noted  in  a  memoran-  ^^  *°  ^^''^^' 
dum)  is  that  an  unnoted  alteration  was  made  after  the  execution 
of  the  will ;  ^  though  the  presumption,  when  the  corrections  are 
in  themselves  consistent  with  the  character  of  the  instrument,  is 
regarded  as  but  faint,  and  yields  readily  to  slight  affirmative  evi- 
dence, or  to  presumptions  drawn  from  the  good  faith  of  the  cus- 
todians.^ Blanks,  which  were  left  in  a  will  by  the  testator's 
direction,  and  were  afterwards  found  to  have  been  filled  in  his 
own  handwriting,  will  be  presumed  to  have  been  filled  by  him 


3  C.  &  P.  55;  Taylor  v.  Mosely,  6  C. 
&  P.  273;  Carris  v.  Tattershall,  2  M. 
&  Gr.  890;  Knight  v.  Clements,  8  A. 
&  E.  215;  3  N.  &  P.  375;  Wilde  v. 
Armsby,  6  Cush.  314;  Hunt  v.  Gray, 
35  N.  J.  L.  227  ;  Mouchet  v.  Cason,  1 
Brev.  (S.  C.)  307;  Jones  v.  Berryhill, 
25  Iowa,  289;  Davis  v.  Carlisle,  6  Ala. 
707.     See  §  626. 

*  "  If  an  alteration  was  made  after 
its  execution  and  without  the  defend- 
ant's consent,  the  note  declared  on  is 
not  tlie  note  of  the  defendant.  The 
plaintiffs  must  establish  that  it  is  this 
defendant's  note,  and  on  this  proposi- 
tion the  plaintiff's  have  the  burden  of 
proof  throughout.  The  plaintiffs  rely 
upon  the  words  of  Shaw,  C.  J.,  in 
Davis  V.  Jenncy,  1  Met.  221,  224; 
'  that  an  extension  of  the  time  was  a 
material  alteration,  and  that  the  bur- 
den of  proof  was  upon  the  defendant 
to  show  the  alteration.'  That  the 
words  arc  not  here  used  in  their  tech- 
nical sense,  is  evident  from  the  para- 
graph that  follows:  'or,  perhaps,  to 
state  this  last  proposition  with  a  little 
more  precision,  the  proof  or  admission 
of  the  signature  of  a  party  to  an  in- 
strument is  prima  facie  evidence  that 
the  instrument  written  over  it  is  the 
act  of  the  party  ;  and  this  prima  facie 


evidence  will  stand  as  binding  proof) 
unless  the  defendant  can  rebut  it  by 
showing,  from  the  appearance  of  the 
instrument  itself,  or  otherwise,  that 
it  has  been  altered.'  In  Wilde  v. 
Armsby,  6  Cush.  314,  it  was  held  that 
the  burden  of  proof  was  on  the  plain- 
tiff to  show  that  an  interlineation 
was  made  before  the  instrument  was 
executed.  The  same  rule  applies  as 
when  a  want  of  consideration  is  relied 
on  as  the  defence  to  a  promissory 
note;  the  burden  of  proof  is  on  the 
plaintiff,  upon  the  whole  evidence,  to 
establish  that  fact.  Delano  v.  Bartlett, 
6  Cush.  364;  Morris  v.  Bowman,  12 
Gray,  467;  Powers  v.  Russell,  13  Pick. 
69,  76.  The  ruling  at  the  trial  was 
correct."  Simpson  r.  Davis,  119  Mass. 
270,  271,  Endicott,  J. 

2  Doe  V.  Catamore,  16  Q.  B.  745; 
Coopc  V.  Bockett,  4  Moore  P.  C.  Cas. 
449;  Doe  v.  Palmer,  16  Q.  B.  74  7; 
Simmons  v.  Rudall,  1  Sim.  (N.  S.) 
136  ;  Stone,  in  re,  1  Swab.  &  Tr.  138; 
Williams  v.  Ashton,  1  Johns.  &  Hem. 
115.  See  Christmas  v.  Whingates,  3 
Swab.  &  Tr.  81;  WikolPs  Appeal,  15 
Penn.  St.  (3  Harris)  281. 

8  Cadge,  in  re,  L.  R.  1  P.  &  D.  543; 
Duffy,  in  re,  Ir.  R.  5  Eq.  506. 

603 


§  632. J  THE   LAW   OF  EVIDENCE.  [BOOK  II. 

before  execution.^  But  an  alteration,  shown  either  directly  or 
inferentially  to  have  been  made  after  attestation,  avoids,  under 
the  statute  of  frauds.^ 

§  G31.  Ancient  documents,  exposed  in  their  archives  to  the 
inspection  of  the  curious,  may  be  altered  or  inter- 
cient.  docii-  lined,  sometimes  fraudulently,  sometimes  innocently, 
"euers,'*"  by  persons  having  from  time  to  time  access  to  them ; 
ex"^^ana-^  and  it  would  be  hard  if  parties  should  be  precluded 
tion  is  not     from  putting  such  documents  in  evidence  by  having, 

imposed.  ^  °.   .  i      •     •  i    •       i  i 

as  a  prerequisite  to  admission,  to  explain  how  such 
alterations  took  place.  So  family  letters  are  often  interlined, 
mutilated,  and  annotated  by  other  members  of  the  same  fam- 
ily ;  and  if  such  changes  require  explanation  before  the  let- 
ters could  be  admitted,  there  could  be  few  cases  of  admission  of 
such  letters,  for  there  are  few  cases  in  which  such  explanation 
could  be  given.  So,  also,  with  regard  to  annals  and  autobiogra- 
phies, to  which  subsequent  owners  are  sometimes  irresistibly 
tempted  to  add  notes.  Hence  it  has  been  properly  held,  that 
with  regard  to  the  classes  of  papers  above  noticed,  there  is  no 
burden  on  the  party  producing  to  explain  alterations,  provided 
the  papers  were  taken  from  the  proper  repositories.  If  so  ob- 
tained they  will  be  admitted,  and  their  weight  will  be  for  the 
jury, 3  Yet  this  relaxation  must  be  carefully  confined  to  evi- 
dentiary papers  taken  from  archives  or  family  repositories. 

§  632.  It  sometimes  happens  that  a  blank,  requiring  a  mere 
Blank  in  formal  filling  up,  is  overlooked  at  the  execution  of  a 
n°vv  be"*^  document.  In  such  case,  it  being  understood  and  in- 
filled up.  -  tended  by  the  parties  that  the  blank  should  be  filled  in 
a  particular  way,  it  does  not  vitiate  the  document  if  the  requisite 
words  are  entered  after  execution,  though  this  be  done  by  a 
stranger,  or  by  one  party  without  consulting  the  other.*  The 
blanks  in  a  deed,  for  instance,  if  not  of  a  character  vital  to  it, 

1  Birch  V.  Birch,  6  Ec.  &  Mar.  Ca.  Stevens  v.  Martin,  18  Penn.   St.  101; 
581.     See  Greville  v.  Tayler,  7  Moore  Walls  v.  McGee,  4  Harr.  (Del.)  108. 
P.  C.  327.  4  AVaugh  v.  Bussell,  5  Taunt.   707; 

2  Infra,  §  897;  Charles  v.  Huber,  78  Plank  Road  v.  AVetsel,  21  Barb.  56; 
Penn.  St.  448.  Vose  v.  Dolan,  108  Mass.  155;  New- 

8  Evans  v.    Rees,  10  A.  &  E.  151  ;  lin  v.  Beard,    6   W.  Va.   110;  Rain- 

Trimlestown  v.  Kemmis,  9   CI.  &  F.  bolt  v.  Eddy,  34  Iowa,  440;  Field  r. 

763;  Little  v.  Herndon,  12  Wall.  26;  Stagg,  52  Mo.  534.     Supra,  §  194. 
604 


CHAP.  IX.]  DOCUMENTS :   ALTERATIONS.  [§  632. 

may  be  so  filled  up  after  its  execution  as  to  complete  the  grant- 
or's intention. 1  So  where  a  plaintiff  sues  as  holder  of  a  promis- 
sory note,  by  blank  indorsement,  he  may  fill  up  the  indorsement 
at  any  time  before  he  puts  the  note  in  evidence.^  In  the  same 
way,  where  a  blank  is  left  for  the  name  of  the  payee,  the  holder 
may  fill  this  blank  with  his  own  narae.^  So  a  party  who  accepts 
a  blank  bill  of  exchange  is  bound  to  a  bond  fide  indorsee  for 
value ;  *  though  as  between  the  drawer  and  the  acceptor  the 
blank  must  be  filled  within  a  reasonable  time.^  So  generally,  in 
regard  to  negotiable  paper  intrusted  by  one  party  to  another  for 
the  latter's  use,  authority  to  the  latter  to  fill  blanks  is  implied 
from  their  existence  in  the  instrument.  "  Beyond  all  doubt 
such  a  party  may  fill  every  blank  which  it  is  necessary  should  be 
filled  to  perfect  the  instrument  and  render  it  operative  within 
its  scope  and  design,  if  the  terms  or  words  of  the  instrument 
sufficiently  indicate  what  that  scope  and  design  are."  ^  Writs 
and  other  mandates,  issuing  from  courts  of  justice,  are  ordina- 
rily, it  is  scarcely  necessary  to  add  by  way  of  illustration,  issued 
in  blank,  leaving  the  names  of  the  parties  concerned  and  other 
material  words  to  be  subsequently  entered.  It  is  otherwise, 
however,  as  to  negotiable  as  well  as  to  non-negotiable  instru- 
ments, when  the  blank  is  filled  up  so  as  to  change  the  manifest 
scope  and  design  of  the  incomplete  instrument.  In  such  case 
the  instrument  becomes  inoperative,  except  in  case  of  negotiable 
paper  to  bond  fide  holders  for  value,  to  whom  the  instrument 
itself  conveys  no  notice  of  alteration." 

1  Zouch  V.  Clay,  1  Ventr.  185;  ^  Temple  v.  Pullen,  8  Ex.  R.  389. 
Markham  v.  Gonaston,  Cro.  Eliz.  626;  See  Schultz  v.  Astley,  2  Bing.  N.  C. 
Eagleton   i\  Gutteridge,  11    M.   &  W.      552. 

465;  West  v.  Steward,   14  M.  &  W.  «  CliiTord,  J.,   Angle  v.  Ins.  Co.   92 

47;  Vose  V.   Dolan,   108  Mass.    155;  U.  S.  (2  Otto)  330;  cited  more  fnlly 

Devin  v.  Himer,  29  Iowa,  297  ;  Clark  infra. 

V.  Allen,  34  Iowa,  190.  '  Bank  v.  Douglass,  31   Conn.  180; 

2  Edwards  v.  Scull,  11  Ark.  325.  Ivory  v.  Michael,  33  Mo.  100.  See 
See  supra,  §  626.  Wood  v.  Steele,  6  Wall.  80. 

8  Durnham  v.   Clogg,   30  Md.  284;  In  Angle   v.  Life   Ins.    Co.    92  U. 

Spitler  V.  James,  32  Ind.  202 ;  Luel-  S.  (2  Otto)   330,  the  court  held  that 

len   V.    Hare,    32    Ind.  211.     See,  to  as  between  the  holder  of  a  negotiable 

same   effect,   German    Ass.    v.    Send-  instrument  with    blanks    unfilled  and 

meyer,  cited  §  633.  innocent  third   parties,  the  holder  is 

*  Montague  i;.  Perkins,  22  L.  J.  C.  to  be    regarded  as    the    agent  of  the 

P.  187,  cited  Taylor's  Ev.  §  1632.  party  committing  it  to  his  custody  for 

605 


§  633.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


§  683.  But  a  blank  in  an  instrument  under  seal  cannot,  unless 
by  a  power  of  attorney  under  seal,  after  the  delivery  of  the  in- 


the  purpose  of  filling  the  blanks.  It 
was,  however,  further  held  that  there 
is  no  implied  authority  that  the  holder 
may  do  anything  more  than  Jill  the 
blanks,  and  consequently  that  any  ma- 
terial erasure  or  addition  amounts  to 
forgery  and  renders  the  instrument 
void.  No  actual  notice  of  an  altera- 
tion is  necessary,  so  it  was  ruled,  if 
the  instrument  shows  the  alteration 
on  its  face.  These  conclusions  were 
held  to  be  applicable  to  an  order  for 
the  delivery  of  funds  signed  by  the 
authorized  officer  of  an  insurance  com- 
pany and  intrusted  to  a  sub-agent. 

"  Even  the  holders  of  negotiable 
securities,  taken  in  the  usual  course 
of  business,  before  the  securities  fall 
due,  are  held  chargeable  with  notice, 
where  the  marks  on  the  instrument 
are  of  a  character  to  apprise  one  to 
whom  the  same  is  offered  of  the  al- 
leged defect.  Goodman  v.  Simonds, 
20  How.  3G5. 

"  When  it  is  proposed  to  impeach 
the  title  of  a  holder  for  value,  by  proof 
of  any  facts  and  circumstances  outside 
of  the  written  instrument  itself,  it  is 
a  very  different  matter.  He  is  then 
to  be  affected,  if  at  all,  by  what  has 
occurred  between  other  parties  ;  and 
he  may  well  claim  an  exemption  from 
any  consequences  flowing  from  their 
acts,  unless  it  be  first  shown  that  he 
had  knowledge  of  such  facts  and  cir- 
cumstances at  the  time  the  transfer 
was  made.  These  principles  are  of 
universal  application;  but  where  a  per- 
son takes  a  negotiable  security  which, 
upon  the  face  of  it,  is  dishonored,  he 
cannot,  says  Taney,  Ch.  J.,  be  al- 
lowed to  claim  the  privileges  which 
belong  to  a  bona  fide  holder.  Andrews 
V.  Pond,  13  Pet.  65. 

"  If  he  chooses  to  receive  it  under 
such  circumstances,  he  takes  it  with 

606 


all  the  infirmities  belonging  to  it,  and 
is  in  no  better  condition  than  the 
person  from  whom  he  received  it ; 
and  the  same  doctrine  was  enforced 
and  applied  in  a  subsequent  case, 
where,  in  speaking  of  a  promissory 
note  so  marked  as  to  show  for  whose 
benefit  it  was  to  be  discounted,  the 
court  held  that  all  those  dealing  in 
paper,  '  with  such  marks  on  its  face, 
must  be  presumed  to  have  knowledge 
of  what  it  imported.'  Fowler  v.  Brant- 
ly,  14  Pet.  318;  Browne  v.  Davis,  3 
Term.  80. 

' '  Actual  notice  in  such  a  case  is  not 
required,  even  in  suits  founded  upon 
negotiable  securities,  where  the  evi- 
dence of  its  infirmity  consists  of  mat- 
ters apparent  on  its  face  ;  nor  is  any 
different  or  stricter  rule  applicable  in 
cases  like  the  present,  it  appearing 
that  the  printed  words,  though  erased, 
so  as  to  be  inoperative,  were  still 
entirely  legible,  even  to  the  casual 
reader,  and  that  the  words  '  current 
funds,'  inserted  before  the  erased 
word  '  drafts,'  were  plainly  repugnant 
to  the  erased  words  '  drafts  to  the  or- 
der of,'  which  followed  them  in  the 
same  connection. 

"  Constructive  notice  in  such  cases 
is  held  sufficient,  upon  the  ground 
that  when  a  party  is  about  to  perform 
an  act  which  he  has  reason  to  believe 
may  affect  the  rights  of  third  persons, 
an  inquiry  as  to  the  facts  is  a  moral 
duty  and  diligence  an  act  of  justice. 
Whatever  fairly  puts  a  party  upon  in- 
quiry in  such  a  case  is  sufficient  notice 
in  equity,  where  the  means  of  knowl- 
edge are  at  hand ;  and  if  the  party, 
under  such  circumstances,  omits  to 
inquire  and  proceeds  to  do  the  act, 
he  does  so  at  his  peril,  as  he  is  then 
chargeable  with  all  the  facts  which  by 
a  proper  inquiry  he  might  have  ascer- 


CHAP.  IX.]  PUBLIC    DOCUMENTS :    STATUTES.  [§  635. 

strument,  be  filled  up  by  an  agent,  by  words  the  effect  of  which 
would  be  to  convert  an  inoperative  into  an  operative  instrument. ^ 
We  have  also  a  ruling  to  the  effect  that  a  schedule,  though  re- 
ferred to  in  a  deed  as  "  annexed,"  cannot  be  annexed,  after  the 
execution,  by  one  of  the  parties,  in  the  other's  absence,  so  as  to 
make  the  deed  operative.^  A  fortiori  does  the  rule  above  given 
apply  when  the  blank  is  filled  up  in  such  a  way  as  to  change 
the  intentions  of  the  parties  ;  ^  or  to  violate  the  statute  of  frauds.* 
But  it  is  otherwise  as  to  matter  which  it  is  usual  to  fill  in  after 
execution,  or  a  matter  the  parties  at  execution  agree  to  leave  to 
an  agent.  Thus  it  has  been  correctly  held  in  Pennsylvania,  that 
the  execution,  by  the  owner  of  stock,  of  a  power  of  attorney  to 
transfer,  with  the  certificate,  the  blank  for  the  attorney's  name 
not  being  filled,  is  evidence  of  an  implied  authority  in  an  agent 
to  fill  in  the  name  of  an  attorney  to  make  the  transfer,  and  thus 
to  complete  the  instrument  in  the  form  intended.'^ 

§  634.  A  subsequent  ratification,  however,  by  the  principal, 
cures  an  unauthorized  filling  up  of  the  blanks ;  ^  a  fortiori  does 
the  insertion  bind  if  made  in  the  party's  presence.''' 

III.    STATUTES;  LEGISLATIVE  JOURNALS;  EXECUTIVE  DOCUMENTS. 

§  635.  A  public  statute  has  been  held  admissible  in  evidence 
to  prove  the  facts  which  it  recites.^     Thus  it  has  been  held 

tained.  Ilawley  v.  Cramer,  4  Cow.  to  the  same  effect  in  reference  to 
717;  Hill  V.  Simpson,  7  Ves.  Jr.  170;  promissory  notes,  cited  supra,  §  G3'2. 
Kennedy  f.  Green,  3  Myl.  &  K.  722;  On  this  principle  alterations  have  been 
Booth  V.  Barnum,  9  Conn.  286 ;  Pitney  sustained  in  Com.  Bk.  v.  Kortright, 
V.  Leonard,  1  Paige,  461;  Pringle  v.  22  Wend.  348;  and  Hudson  v.  Rev- 
Phillips,  5  Sand.  157."  CliiFord,  J.,  ett,  5  Blng.  368. 
in  Angle  v.  Ins.  Co.,  ul  supra.  ^  Skinner  v.  Dayton,  19  Johns.  513; 

1  Hibblethwaite  v.  McMorine,  6  M.  Cady  v.  Shepherd,  11  Pick.  400.  See 
&  W.  200;  U.  S.  V.  Nelson,  2  Brock.  64.  Whart.  on   Agency,  §  50;  Hudson   v. 

2  Weeks  v.  Maillardet,  14  East,  568.  Revett,  5  Bing.  269  ;  2  M.  &  P.  663 
See  West  v.  Steward,  14  M.  &  W.  Tupper  i-.  Foulkes,  9  C.  B.  N.  S.  797 
48;  though  see  England  v.  Downs,  2  ^  Ball  t;.  Dunsterville,  4  T.  R.  313 
Beav.  522;  Halsey  y.  Whitney,  4  Mass.  Harrison  i'.  Elvin,  3  Ad.  &  El.  117 
219  ;  Key es  i\  Brush,  2  Paige,  311.  Gardner   v.    Gardner,   5     Cush.   483 

8  Upton    V.    Archer,    41     Cal.    85;  Hanford  v.  McNair,  9  Wend.  5(5. 

Schintz  r.  McManamy,  33  Wise.  299.         «  See   supra,   §§   286-292;    Whiton 

*  Supra,  §  624;  infra,  §  901.  v.  Ins.  Co.   109  Mass.   30,  quoted  iu- 

^  German    Ass.   v.  Sendmeyer,  50  fra,  §  638  ;  Henthorn  v.  Shepherd,   1 

Penn.    St.   67.     See,    also,    Wiley   r.  Blackf.   157.     See  State  v.  Sartor,  2 

Moor,  17  S.  &  R.  438  ;  and  see  cases  Strobh.  60. 

607 


§  638.] 


THE  LAW   OF   EVIDENCE. 


[book  ir. 


that  a  recital  of  a  state  of  war,  contained  in  a  public  statute,  is 
evidence  of  such  war  ;  ^  and  a  recital  in  a  statute  of 
public  disturbances  and  riots  to  be  proof  of  such  dis- 
turbances and   riots.^     But  such   proof  is  only  primd 


Public 
statutes 
prove  their 
recitals. 

facie  J^ 
§  636. 


Recitals  in 
private 
statutes 
not  usually 
evidence. 


As  long  as,  in  England,  the  passage  of  private  statutes 
was  conditioned  on  the  approval  of  the  judges,  recitals 
in  such  statutes  were  admitted  as  evidence  of  the  facts 
they  stated.^  When,  however,  this  prerequisite  was  no 
longer  insisted  on,  such  recitals  were  held  only  to  im- 
ply notice  in  the  parties,  such  notice  not  reaching  to  strangers.^ 
Such  is  no  doubt  the  rule  in  the  United  States.^  As  against  the 
party  for  whose  relief  the  statute  was  passed ;  "^  and  as  against 
the  state  ;  ^  such  recitals  ixre  primd  facie  proof;  but  they  are  not 
evidence  against  strangers. 

§  637.  The  journals  of  Congress,  and  of  the  state  legislatures, 
,    ,  are  the  proper  evidence'' of  the  action  of  those  bodies.^ 

Journals  of  '^       ^  .    " 

legislature     As  a  rule  they  are  primd  facie  proof  of  the  facts  they 
recite.^''    They  are  records,  to  be  proved  by  inspection,^^ 

and  cannot  ordinarily  be  corrected  by  parol.^^ 

§  638.  The  official  proclamation  and  other  public  documents 

issued  by  the  executive  are  to  be  received  as  primd  facie 

proof  of  facts  stated  in  them,  when  such  facts  are  rele- 

vant.13     State  papers  when  published  under  the  author- 

1  R.  V.  De  Berenger,    3  M.   &  S.         ^  Supra,  §§  290-295  ;  Jones  v.  Ran- 
67.     But  would  not  judicial  notice  of    dall,  1  Cowp.  17. 
the  war  be  taken  without  the  statute  ?        '°  Albertson  v.  Robeson,  1  Dall.  9  ; 


So  of  ex- 
ecutive 
documents. 


Supra,  §  339. 

2  R.  V.  Sutton,  4  M.  &  S.  532. 

8  R.  V.  Greene,  6  A.  &  E.  548. 

4  Supra,  §  292  ;  Wharton  Peerage, 
12  CI.  &  F.  302  ;  Shrewsbury  Peer- 
age, 7  H.  of  L.  Cas.  13. 

^  Shrewsbury  Peerage,  7  H.  of  L. 
Cas.  13  ;  Beaufort  v.  Smith,  4  Ex.  R. 
450  5  Cowell  v.  Chambers,  21  Beav. 
619  ;  Mills  v.  Colchester,  36  L.  J.  C. 
P.  214  ;  Tayler  v.  Parry,  1  M.  &  Gr. 
604  ;  Ballard  v.  Way,  1  M.  &  W.  329. 

®  Ehnendorff  v.  Carmichael,  3  Litt. 
(Ky.)  4  72. 

■^  State  V.  Beard,  1  Ind.  4G0. 

*  Lord  V.  Bigelow,  8  Vt.  4G0. 

608 


Root  V.  King,  7  Cow.  613  ;  Miles  v. 
Stevens,  3  Penn.  St.  21 ;  Green  v. 
Weller,  32  Miss.  650.  See  R.  v. 
Franklin,  17  How.  St.  637.  See  as  to 
judicial  notice  of  legislative  action,  su- 
pra, §§  290,  295.  It  should  be  added, 
that  the  rule  in  the  text  should  be 
confined  to  incidents  of  legislative  ac- 
tion, and  not  to  opinions  expressed  in 
resolutions. 

"  Coleman  v.  Dobbins,  8  Ind.  156. 

12  Wabash  R.  R.  v.  Hughes,  38  111. 
176;  Covington  v.  Ludlow,  1  Mete. 
(Ky.)  295.     Infra,  §  980  a. 

13  Thelusson  y.  Gosling,  4  Esp.  2G6  ; 
R.  V.  Franklin,  17  How.  St.  R.   638  ; 


CHAP.  IX.] 


NON-JUDICIAL   RECORDS. 


[§  639. 


ity  of  Congress,  have  a  like  effect.^  Thus  the  diplomatic!  corre- 
spondence communicated  by  the  President  to  Congress  has  been 
held  in  this  sense  evidence  of  the  facts  communicated.^  So 
the  ordinances  of  foreign  states,  promulgated  by  Congress,  are 
held  proved  by  force  of  such  promulgation.^  Army  registers, 
when  authenticated  by  the  secretary  of  war,  have  been  held  to  be 
proof  of  the  names  of  officers,  of  the  dates  of  their  commissions, 
and  of  their  resignations,  though  they  cannot  be  received  to  show 
the  pay  and  emoluments  of  officers.*  The  proclamation  of  a 
governor  of  a  state  is  primd  facie  evidence  of  the  result  of  the 
elections  which  it  recites.^  The  printed  report  of  a  state  comp- 
troller to  the  legislature  is  evidence  of  the  pertinent  facts  recited  ;  * 
and  so  is  the  charter  of  a  city.'^  But  it  has  been  held  that  a  re- 
port of  the  register  of  the  state  land  office  cannot  be  received  to 
prove  that  lands  have  been  patented  to  a  railroad  company.^ 


IV.  NON-JUDICIAL  REGISTRIES  AND  RECORDS. 

§  639.  Where  a  statute  requires  the  keeping  of  an  official 
record  for  the  public  use,  by  an  officer  duly  appointed    official 
for   the  purpose,    and   subject    not   merely  to  private   cenabie7n 
suit  but  to  official   prosecution  for  any  errors,  such  rec-   evidence. 


Talbot  V.  Seeman,  1  Cranch,  1  ;  Ross 
V.  Cutchall,  1  Binney,  399. 

1  Watkins  v.  Holman,  16  Pet.  26 
Bryan  v.  Forsyth,  19  How.  U.  S.  334 
Gregg  V.  Forsyth,  24  How.  U.  S.  179 
Dutillet  V.  Blanchard,  14  La.  An.  97 
Nixon  V.  Porter,  34  Miss.  697.     As  to 
judicial  notice,  see  §  317;  Wliiton  v. 
Ins.   Co.    109   Mass.    24 ;    Piadcliff  v. 
Ins.  Co.  7  Johns.  38. 

"  Acts  of  Congress,  and  proclama- 
tions issued  by  the  secretary  of  state  in 
accordance  therewith,  are  the  appro- 
priate evidence  of  the  action  of  the 
national  government.  Taylor  on  Ev. 
(5th  ed.)  §  1473;  1  Greenl.  Ev.  §  491. 
And  the  volume  of  public  documents, 
printed  by  authority  of  the  Senate  of 
the  United  States,  containing  letters 
to  and  from  various  oflicers  of  state, 
communicated  by  the  President  of  the 
United  States  to  the  Senate,  was  as 
VOL.  I.  39 


competent  evidence  as  the  original 
documents  themselves.  The  King  v. 
Holt,  5  T.  R.  436,  and  2  Leach  (4th 
ed.),  593;  Watkins  v.  Holman,  16 
Peters,  25,  55,  56  ;  Bryan  v.  Forsyth, 
19  How.  334  ;  Gregg  v.  Forsyth,  24 
How.  179  ;  RadcliflF  v.  United  Insur- 
ance Co.  7  Johns.  38,  50."  Gray,  J., 
Whiton  V.  Insurance  Co.  109  Mass. 
30. 

3  Bryan  v.  Forsyth,  19  IIow.  U.  8. 
334;  RadclilTt'.  Ins.  Co.  7  Johns.  38. 

*  Talbot  V.  Seeman,  1  Cranch,  1. 

*  Wetniore  v.  U.  S.  10  Pet.  647. 
As  to  judicial  notice  of  military  law, 
sec  supra,  §  297. 

^  Lurton  v.  Gilliam,  1  Scam.  (111.) 
577. 

°  Dulaney  i;.  Dunlap,  3  Coldw. 
307. 

^  Howell  r.  Rugglcs,  5  N.  Y.  444. 

*  Gordon  v.  Bucknell,  38  Iowa,  438. 

609 


§  639.]  THE   LAW   OF  EVIDENCE.  [BOOK  11. 

ord,  so'far  as  concerns  entries  made  in  it  in  the  course  of  busi- 
ness, is  admissible  in  evidence  as  primd  facie  proof  of  the  facts 
it  contains.^  Nor  is  it  necessary  to  verify  such  record  by  the 
oath  of  the  person  keeping  it.  That  it  is  directed  by  statute 
to  be  kept  for  the  public  benefit,  and  that  it  is  kept,  so  far  as 
appears  on  its  face,  with  regularity  and  accuracy,  entitles  it  to 
be  received  in  evidence,  and  throws  the  burden  of  impeaching 
it  on  the  opposite  side.^  To  make  the  record  itself  evidence,  it 
is  only  necessary  that  it  should  be  produced,  and  that  it  should 
be  proved  to  have  come  from  the  proper  depositary .^  Thus, 
under  this  rule,  the  English  courts  have  admitted  custom-house 
registries  and  official  papers ;  ^  the  public  registries  of  municipal 
and  similar  corporations  ;  ^  the  registries  of  parliamentary  voters 
which  are  in  the  proper  public  custody  ;  ^  the  registries  of  the 
coast  guard  noting  changes  of  wind  and  weather,'^  and  light- 
house journals  for  the  same  purpose.^  So,  also,  land-tax  assess- 
ments have  been  held  admissible  to  prove  the  assessment  of  the 
taxes  upon  the  individuals  and  for  the  property  therein  men- 
tioned ;  ^  and  in  Ireland,  poor  law  valuations  have  been  received 
as  evidence  of  value.^^  So  the  courts  have  admitted  the  books  of 
the  Sick  and  Hurt  Office,  to  prove  the  death  of  a  seaman,  and  the 
time  of  such  death  ;  ^^  and  the  registries  of  public  prisons,   or 

1  Supra,  §  120  ;  infra,  §  649.  Eoblnson,  Willes,  422  ;  R.  v.  Hughes, 

2  Greenleaf's  Ev.  §  483;  Taylor's     cited    Ibid.  ;    R.    v.    Davis,    2    Str. 
Ev.  §  1429.     Supra,  §  120.  1048. 

8  See  infra,  §  649  et  seq. ;  Atkins  v.  '  The  Catherina  Maria,  1  Law  Rep. 
Halton,  2  Anst.  387;  Armstrong  v.  Adm.  &  Ecc.  53.  See  De  Armond  v. 
Hewett,  4  Price,  216;  Pulley  v.  Hil-  Neasmith,  32  Mich.  231. 
ton,  12  Price,  625  ;  Croughten  v.  8  The  Maria  das  Dorias,  32  L.  J. 
Blake,  12  M.  &  W.  208  ;  Kyburg  v.  Pr.,  Mat.  &  Adm.  163,  per  Dr.  Lush- 
Perkins,  6  Cal.  674;  Haile  i-.  Palmer,  ington;  B.  &  Lush.  Adm.  R.    27,  5. 

5  Mo.  403.    As  to  baptismal  registries,  C.  nom.  The  Maria  das  Dores. 

see  infra,  §  653.  9  Doe  v.  Seaton,  2  A.  &  E.  1 70,  1 78 ; 

*  Tomkins  v.   Atty.   Gen.    1   Dow,  Doe  u.  Arkwright,  Ibid.  182,  n.;  5  C. 

404.  &  P.  575  ;  1  N.  &  M.  731,  S.  C. ;  Doe 

^  Marriage  r.  Lawrence,  3  B.  &  A.  v.  Cartwright,  Ry.  &  M.  62;    1   C.  & 

142  ;    R.   V.   Mothersell,    1    Str.    93  ;  P.    218,    S.   C.     See   Ronkendorff   v. 

Thetford's  case,  12  Vin,  Abr.   90,  pi.  Taylor,  4  Pet.  349,  360. 

16;  Warriner  r.  Giles,  2  Str.  954.   As  ^^  Swift  v.  McTiernan,  11  Ir.  Eq. 

to  other  corporation  books,  see  infra,  R.   602,  per  Brady,  Ch.;  Welland  v. 

§  661.  Ld.   Middleton,    Ibid.  603,   per  Sug- 

®  Reed  v.  Lamb,  29  L.  J.  Ex.  452;  den,  Ch. 

6  H.  &  N.   75,   S.  C.     See  Mead  v.  "  Wallace  v.  Cook,  5  Esp.  117. 

610 


CHAP.  IX.]  NON-JUDICIAL  RECORDS.  [§  639. 

penitentiaries,  to  prove  the  stay  of  a  prisoner,^  though  not  to 
prove  the  cause  of  commitment.^  An  entry  in  a  vestry-book, 
stating  the  election  of  a  treasurer  of  the  parish  at  a  vestry  duly 
held  in  pursuance  of  notice,  is  evidence  of  the  election,  and  of  its 
regularity.^  On  the  other  hand,  on  the  ground  that  the  docu- 
ment was  not  kept  under  statute  for  public  use,  admission  has 
been  refused  to  a  report  stating  the  burden  of  a  foreign  ship, 
and  the  number  of  the  crew,  which  was  made  by  the  master  to 
the  authorities  of  the  custom-house,  and  was  there  filed,  when  the 
report  was  tendered  in  evidence  as  a  public  document  to  prove 
the  burden  of  the  ship  ;  and  also  to  a  certificate  filed  at  the  cus- 
tom-house, which  was  signed  by  a  party  who  certified  that  he 
had  measured  the  vessel,  and  stated  the  amount  of  the  tonnage.* 
So,  on  the  same  reasoning,  Lloyd's  Register  of  Shipping  has 
been  rejected  ;^  and  so  has  a  registry  of  attendance  kept  by  the 
medical  officer  of  a  union  as  a  check  upon  himself  ;  *^  and  so 
the  book  called  Arms  and  Descents  of  the  Nobility,  E.,  16, 
though  produced  from  the  Heralds'  College.'^  Admittance  has 
also  been  refused  to  a  registry  produced  from  the  office  of  the 
Secretary  of  bankrupts,  in  which  entries  were  made  of  the  allow- 
ance of  certificates,  for  the  reason  that  the  book  was  not  kept 
under  the  authority  of  any  official  order,  nor  were  the  entries 
made  in  the  course  of  official  duty.^ 

On  the  same  reasoning,  it  has  been  held  in  a  Maryland  case 
that  police  records,  kept  by  the  detective  police  of  a  city,  in 
order  to  show  charges  made  against  particular  individuals,  can- 
not be  put  in  evidence  by  a  party  so  accused,  in  order  to  show 

1  Salte  V.  Thomas,  3  B.  &  P.  188;  49G,  this  book  was  admitted,  to  prove 
R.  V.  Aikles,  1  Lea.  391.  that  the  coast  of  Peru  was  in  a  state 

2  Ibid.  of  blockade  at  a  particular  time;  and 
8  R.  V.  Martin,  2  Camp.  100;  Hart-     in  Abel  v.  Potts,  3  Esp.  242,  it  was 

ley  V.  Cook,  5  C.  &  P.  441.    See,  also,  received  as   evidence  of  the  capture 

Price  V.   Littlewood,    3   Camp.    288 ;  of  a  vessel.      See,   also,    Richardson 

though  it  is  otherwise  with  entries  not  v.   Mellish,    2    Bing.    241,    per    Best, 

made  in  discharge  of  any  public  duty.  C.  J. 
Cooke  V.  Banks,  2  C.  &  P.  478.  «  Merrick  v.  Wakley,   8   A.    &  E. 

*  Huntley    v.   Donovan,  15    Q.   B.  170. 
9G.  ^  Shrewsbury  Peer.  7  H.of  L.  Cas. 

6  Freeman  v.  Baker,  5  C.  &  P.  482.  24. 
See  Kerr  v.  Shedden,  4  C.  &  P.  531,         8  Henry  v.  Leigh,  3  Camp.  499. 
n.    a.      In   Bain  v.    Case,  3  C.  &  P. 

611 


§  640.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


the  injury  done  him  by  being  charged  with  theft ;  such  records 
not  being  prescribed  by  statute,  nor  in  any  way  traceable  to  the 
party  sued  for  the  injury.^ 

But  in  all  such  cases  it  is  essential  to  remember,  that  however 
inadmissible  entries  may  be  per  se,  or  however  incompetent  may 
be  the  book  in  which  they  are  made,  they  may  become  evidence 
when  made  by  a  deceased  person  against  his  interest,^  or  in  dis- 
charge of  a  business  duty.^ 

§  640.  In  this  country  we  have  numerous  cases  tending  to  show 
that  official  records,  duly  kept  by  public  administra- 
tive ofl&cers,  are,  as  to  third  parties,  primd  facie  evi- 
dence of  the  facts  entered  duly  by  such  officers  in  the 
course  of  their  duties,  as  well  as  of  documents  recorded.'* 
Even  a  public  officer's  entry,  when  in  the  regular  discharge  of 


Records 
of  public 
adminis- 
trative 
officers  ad 
missible. 


^  Garvey  v.  Wayson,  42  Md.  187. 

"  The  fact  that,  pursuant  to  the 
regular  custom  of  the  detective  police 
department,  the  appellant's  name  was 
entered  upon  the  detective  police  an- 
nals of  the  city,  and  open  to  the  in- 
spection and  use  of  the  police  force, 
as  tending  to  show  the  publicity  of 
the  charge  made  against  him,  and  the 
consequent  injury  to  him,  was  clearly 
not  admissible  evidence  against  the 
appellee,  unless  there  was  some  law 
requiring  such  a  record  to  be  kept,  or 
unless  the  appellant  was  prepared  to 
show  by  proof  that  the  appellee  knew 
that  the  name  of  the  appellant  would 
be  so  entered  as  the  consequence  of 
the  charge  of  theft  being  preferred 
against  him.  The  acts  of  the  detec- 
tive force  were  certainly  not  admis- 
sible for  the  purpose  of  inflaming  the 
damages  against  the  appellee,  without 
further  proving  that  there  was  some 
law,  of  which  the  appellee  would  be 
bound  to  take  notice,  requiring  an  en- 
try on  their  books  of  the  name  of  any 
party  against  whom  a  criminal  charge 
might  be  preferred,  or  that  it  was  their 
custom  to  make  such  entry,  and  that  the 
appellee  had  a  knowledge  of  that  fact. 

612 


There  was  no  error  in  the  ruling  in 
this  exception."  Garvey  v.  Wayson, 
42  Md.  187,  Grason,  J. 

2  Supra,  §  226. 

8  Supra,  §  238. 

*  Cases  cited  in  §  639 ;  U.  S.  v.  How-* 
land,  2  Cranch  C.  C.  508  ;  U.  S.  v. 
Kuhn,  4  Cranch  C.  C.  401 ;  Wakefield 
V.  Alton,  3  N.  H.  378;  Hay  ward  v. 
Bath,  38  N.  H.  179;  Gilbert  u.  New 
Haven,  40  Conn.  102  ;  Thompson  v. 
Chase,  2  Grant  (Penn.),  36  7;  Chap- 
man V.  Herrold,  58  Penn.  St.  106  ; 
Erickson  v.  Smith,  2  Abb.  (N.  Y.) 
App.  Dec.  64;  Taliaferro  v.  Prj'or,  12 
Grat.  277;  Westerhaven  v.  Clive,  5 
Ohio,  136;  Dixon  v.  Doe,  5  Blackf 
106;  Daniels  v.  Stone,  6  Blackf.  451 
McNeely  v.  Rucker,  6  Blackf.  391 
Holcroft  V.  Halbert,  16  Ind.  256;  St 
Charles  v.  O'Mailey,  18  III.  407  ; 
Hiner  v.  People,  34  111.  297;  Weisbrod 
V.  Chicago  R.  R.  Co.  21  Wise.  602; 
Lumsden  v.  Cross,  10  Wise.  282  ;  Sou- 
lard  V.  Clark,  19  Mo.  570  ;  Kyburg  v. 
Perkins,  6  Cal.  674  ;  Pralus  v.  Pacific 
Co.  35  Cal.  30;  Conner  v.  McPhee,  1 
Mon.  T.  73  ;  Stroud  v.  Springfield,  28 
Tex.  649.     See  supra,  §  111. 


CHAP.  IX.]  NON-JUDICIAL  RECORDS.  [§  G41. 

his  duties,  in  a  book  he  is  by  law  required  to  keep,  is  primd  facie 
evidence  in  his  own  favor  when  the  performance  of  the  acts  regis- 
tered is  at  issue.  1 

This  attribute  of  admissibihty  has  been  apphed  to  the  registry 
of  incumbrances  in  the  proper  records  ;  ^  to  the  records  of  a  hind 
office ;  3  to  the  blotters  of  a  land  office  ;  ^  to  the  plats  recorded  in 
a  surveyor  general's  office  ;^  to  the  public  records  of  a  city  show- 
ing authority  to  widen  streets  ;  ^  to  the  book  of  accounts  kept  in 
the  office  of  an  alcade  ; "'  to  the  alcade's  book  of  grants ;  ^  to  the 
record  of  a  court-martial ;  ^  to  the  record  of  registered  letters 
in  the  post-office  ;  ^"^  to  the  registry  of  tax  sales  by  county  com- 
missioners ;  ^^  to  the  registry  of  tax  sales  by  a  county  treasurer  ;  ^^ 
to  the  record  of  redemption  of  taxes  in  an  auditor's  office  ;  ^^  to 
the  record  of  county  supervisors ;  ^*  to  the  record  of  the  assess- 
ment of  property  by  selectmen ;  ^^  to  the  returns  of  a  deceased 
person  of  his  property  to  the  receiver  of  taxes  ;  ^^  though  as  to 
the  value  of  taxed  property  the  tax  books  are  not  themselves 
evidence.^'^  Even  the  registries  of  weather  kept  by  public  insti- 
tutions have  been  received,  as  will  be  presently  seen,  in  order  to 
prove  the  weather  at  certain  distant  periods.^^  It  should  at  the 
same  time  be  remembered  that  public  acts  of  this  class  cannot  be 
put  in  evidence  to  affect  strangers  dispositively.^^ 

§  641.  The  same  authority  is  assigned  the  records  of  town 
meetings  ;  ^'^  and  to  the  books  of  the  selectmen  of  a  town,  prov- 

1  Bissell  V.  Ilamblin,  6  Ducr,  512.  "  Groesbeck   v.  Seeley,    13   Mich. 

"^  Metcalf  V.  Munson,  10  Allen,  491 ;  329. 

Conway  v.  Case,  22  111.   127.      Supra,  ^3  J^ane  v.  Sharpe,  3  Scam.  5G6. 

§  111.  "  People  V.  Bircham,  12  Cal.  50. 

8  Gait   t;.    Galloway,   4   Pet.   332;  is  Pittsfield  v.  Barnstead,  40  N.  H. 

Beauvais  v.  Wall,  14  La.  An.  199.  477.     See  supra,  §  639. 

*  Strimpfler  v.  Roberts,    18    Penn.  i'=  Lynch  r.  Lively,  32  Ga.  575.  See 

St.  283.  supra,  §  G39. 

6  Ott  V.  Soulard,  9  Mo.  581;  Smith  "  Lockhart  v.  Woods,  38  Ala.  G31. 

'  V.  Hughes,  23  Tex.  248.  Sec  supra,  §  G39. 

6  Barker  v.  Fogtr,  34  Me.  392.  "  See  infra,  §  G4  7. 

■^  Kyburgt;.  Perkins,  G  Cal.  6  74.  "  See  supra,  §  176. 

8  Downer  v.  Smith,  24  Cal.  114.  20  Cass  v.    Bellows,   31   N.  H.  501; 

0  Brooks  V.  Daniels,  22  Pick.  498.  Saxton     v.    Nimms,    14     Mass.    315; 

10  Gurney  V.  Howe,  9   Gray,  404.  Thayer  i'.  Stearns,  1   Pick.  109;  Gil- 

"  Dikcman  v.  Parrish,  6  Penn.  St.  more   v.    Holt,   4    Pick.   258;  Hridgc- 

210;    Cuttle  v.  Brockway,   24    Penn.  w.itcr  i;.  W.  Bridgewater,  7  Pick.  191; 

St.  145.  Waters  v.  Gilbert,  2  Cush.  27  ;  Isbell 

613 


§  643.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


ing  payments  in  support  of  a  pauper.^  But  the  reports  of  a 
Records  town  committee,  as  to  a  highway,  and  the  votes  of 
meetings  ^^®  town  as  to  such  highway,  are  not  admissible  in  an 
admissible,  ^ction  against  the  town  for  damages  produced  by  a  de- 
fect in  the  highway,  to  prove  an  admission  of  defectiveness  by 
the  town.2 

§  642.  When  properly  made,  the  record  includes  all  its  usual 
incidents.^  A  receipt  on  a  record,  for  instance,  be- 
comes part  of  the  record.^  Such  a  record  is  the  pri- 
mary evidence  of  the  proceedings  to  which  it  relates, 
being  in  this  respect  treated  as  other  records,  only  to  be  proved 
by  parol  in  cases  of  loss  or  destruction,  though  open  to  parol  ex- 
planation, so  far  as  concerns  ambiguities  and  matters  collateral.^ 
§  643.  But  a  record,  to  be  thus  admitted,  must  be  of  a  class 
Record  authorized  by  the  statute  or  by  common  law,^  though 
class  au-°^  a  Special  authorization  by  name  is  not  necessary.'^  It 
must  be  kept  by  the  proper  oflBcer.^  Records  relating 
to  real  estate  must  be  recorded  in  the  office  rei  sitae  and 


Record  in 
eludes  its 
incidents. 


class  au 
thorized 
by  law. 


V.  R.  R.  25  Conn.  556;  People  v. 
Zeyst,  23  N.  Y.  140;  Sanborn  v. 
School  Dist.  12  Minn.  17. 

1  Thornton  i'.  Campton,  18  N.  H. 
20.  And  so  as  to  school-board  min- 
utes. The  records  of  a  school-district 
meeting  are  the  best  evidence  of  the 
business  transacted  thereat ;  and  there 
is  no  error  in  rejecting  oral  evidence 
of  the  business  transacted  at  such  a 
meeting.  Monaghan  v.  School  Dis- 
trict, 38  Wise.  101. 

2  Collins  V.  Dorchester,  6  Cash. 
396;  Wheeler  v.  Framingham,  12 
Cush.  287. 

8  Supra,  §  619. 

<  See  infra,  §§  830,  832;  Lothrop 
V.  Blake,  3  Penn.  St.  483;  Lawrence 
Co.  V.  Dunkle,  35  Mo.  395. 

6  See  infra,  §§  982,  986,  991 ;  Long- 
ley  u.  Vose,  27  Me.  179;  Bishop  v. 
Cone,  3  N.  H.  513;  Cabot  w.  Britt, 
36  Vt.  349  ;  Benninghoof  v.  Finney, 
22  Ind.  101;  Lane  i'.  Sharpe,  3  Scam. 
566;    Sanborn  i;.   School  District,  12 

614 


Minn.  17;  Monaghan  v.  School  Dist. 
38  Wise.  101. 

6  Supra,  §  639;  Wetmore  v.  U. 
S.  10  Pet.  647;  State  v.  Berry,  21 
Me.  169 ;  Hardy  v.  Houston,  2  N. 
H.  309 ;  Gurney  v.  Howe,  9  Gray, 
404;  People  v.  Denison,  17  Wend. 
312;  Bouchaud  v.  Dias,  3  Denio,  238; 
Shortz  V.  Unangst  3  Watts  &  S.  45 ; 
Fitler  v.  Shotwell,  7  Watts  &  S.  14; 
Foresman  v.  Marsh,  6  Blackf.  286 ; 
Smith  V.  Lawrence,  12  Mich.  431  ; 
Com.  V.  Rhodes,  1  Dana,  595;  Haile 
V.  Palmer,  5  Mo.  403  ;  Trammell  v. 
Thurmond,  17  Ark.  203. 

'  Strimpfler  v.  Roberts,  18  Penn. 
St.  283 ;  Groesbeck  v.  Seeley,  13 
Mich.  329  ;  Highsmith  v.  State,  25 
Tex.  Supp.  137  ;  Hatchett  v.  Conner, 
30  Tex.  104. 

8  Supra,  §  639;  U.  S.  v.  Kuhn,  4 
Cranch  C.  C.  401 ;  Waters  v.  Gilbert, 
2  Cush.  27;  Allen  v.  Vincennes,  25 
Ind.  531. 


CHAP.  IX.]  NON- JUDICIAL  RECORDS.  [§  645. 

by  the  proper  local  officer.^  Thus  an  alcade's  book  must  bear 
the  signatures  of  the  alcade  and  clerk  for  the  time  being,  and 
be  kept  in  the  proper  county .^  It  has  been  held  in  Massa- 
chusetts, that  where  it  was  proved  by  a  witness  that  a  book  of 
records  of  the  proprietors  of  certain  common  lands  came  to  him 
from  his  grandfather,  there  being  no  evidence  of  the  appointment 
of  a  clerk  to  keep  the  records,  and  no  place  appointed  by  law  for 
their  keeping,  such  book  could  be  admitted  in  evidence,  the  pre- 
sumption from  lapse  of  time  being  that  the  witness  was  their 
proper  custodian.^  A  book  where  mining  claims  are  recorded 
according  to  miners'  rules,  as  established  in  a  mining  district,  may 
be  received,  it  has  been  held  in  California,  to  prove  compliance 
with  the  rules  requiring  the  recording  of  transfers.* 

§  644.  To  entitle  a  record  or  registry  to  admission,  to  prove 
pertinent  facts,  it  must  not  only  come  from  the  proper   Such 
officer,  and  be  taken  from  the  proper  custody,^  but  it   n^ust  be 
must  be  properly  attested  and  identified.^     An  inevi-   anj'Hg^*^ 
table  break  in  such  custody  may  be  explained  by  parol   complete, 
proof.'     It  must  be  complete  in  itself ;  and  one  portion  of  it  can- 
not be  received  without  the  entire  relevant  context.^ 

§  645.  A  registry,  also,  as  well  as  a  judicial  record,  must  on 

its  face  indicate  accuracy.^     The  custom  being  to  en- 

1  '',..,  .,        °  1      It  "i"st  in- 

gross  registries  and  records  in  ink,  pencil  memoranda   dicate  ac- 

of  entries  will  be  regarded  as  merely  provisional.    Thus,   ^^^^^^' 

1  Royce  v.  Hard,  24  Vt.  620;  Don-  i'.  Emerson,  4  Pick.  160;  Welles  v. 
aldson  v.  riiillips,  18  Penn.  St.  170;  Battelle,  11  Mass.  477;  Franey  v. 
and  cases  cited  Whart.  Confl.  of  Laws,  Miller,  11  Penn.  St.  434;  Downer  v. 
§  372.     See  supra,  §  111.  Smith,  24  Cal.  114;  Sanborn  v.  School 

2  Downer  v.   Smith,   24   Cal.    114;  Dist.  12  Minn.  17. 

Secrest  v.  Jones,  21  Tex.  121.  '  Herndon  i'.  Casiano,  7  Tex.  322. 

8  Tolman  r.  Emerson,  4  Pick.  160.  See  supra,  §  194  e^  seq. 

As  to  the  question  of  the  proper  custo-  *  Supra,  §   619.     See  infra,  §  828, 

dian  of  a  document,  see  fully  supra,  830;  Morrill  v.  Foster,  33  N.  IT.  379; 

§§  194,  197.  Miles  i'.  Wingatc,  6   Jnd.  458;  Loper 

*  Attwood   V.  Fricot,   17  Cal.    37.  v.  State,  8  How.  (Miss.)  429. 

See  McGarrity  v.  Byington,  12  Cal.  ^   Monumoi    Beach    v.    Rogers,    1 

426;    English    v.    Johnson,    17    Cal.  Mass.    159;    Sprague    v.   Bailey,    19 

107.  Pick.  436;  Kinney  r.  Doe,  8   Blackf. 

'  See  supra,  §  197.  350;  Ewbanks  v.  Ashley,  36  111.  177; 

«  Foxcrolt  V.  Crookcr,  40  Me.  308;  Walls  v.  McGee,  4   Harr.  (Del.)  108. 

Bean  v.  Smith,  20  N.  H.  461 ;  Tolman  See  infra,  §  982. 

615 


§  647.] 


THE  LAW   OF   EVIDENCE. 


[book  II. 


pencil  memoranda  on  records  have  been  held  inadmissible.^ 
But  defects  of  form,  in  recording  of  ancient  deeds,  may  be  ex- 
plained by  parol.2  And  to  all  cases  the  ordinary  presumption 
of  regularity  will  be  applied.^ 

§  646.  The  rule  establishing  the  admissibility  of  records  of  this 
Record  class  has  been  held  not  to  extend  to  cases  where  such 
beTtseif*  records  are  themselves  secondary  evidence.*  Thus,  the 
secondary,  ^rmy  register  of  the  United  States  is  not  evidence  of 
the  pay  of  officers  of  the  army,  such  pay  being  determined  by 
statute.^  So  a  tax  duplicate  is  not  a  record  that  proves  itself,^ 
but  its  authority,  even  if  it  be  admissible,  must  first  be  estab- 
lished by  parol.'''  The  rule  which  allows  lost  records  of  courts 
to  be  supplied  by  parol  applies  to  records  kept  by  public  admin- 
istrative officers.^ 

§  647.  We  have  already  seen  ^  that  a  registry  or  record,  kept 
for  public  use,  by  an  officer  authorized  by  statute  or  by 
common  law  to  keep  such  document,  is  admissible  evi- 
dence of  pertinent  facts  it  records.  It  may,  however, 
happen  that  a  registry  of  current  events  kept  in  a  pub- 
lic voluntary  institution  may  be  the  only  evidence  at- 
tainable of  a  fact  in  litigation.  If  so,  on  the  principle 
that  the  best  evidence  is  always  admissible  evidence, i°  such  evi- 
dence should  be  admitted  as  prima  facie  proof.  In  accordance 
with  this  view,  a  record  of  weather  kept  at  a  public  institution 
has  been  held  admissible  to  prove  the  temperature  on  a  day 
as  to  which  witnesses  could  not  accurately  speak.^^     Such  entries, 

1  Meserve  v.  Hicks,  24  N.  H.  295. 
See  supra,  §  616. 

2  Infra,  §  1307-11.  Booge  v.  Par- 
sons, 21  Vt.  57;  Bettison  v.  Budd,  21 
Ark.  578. 

8  R.  V.  Catesby,  2  B.  &  C.  814  ;  R. 
V.  Whitechurch,  7  B.  &  C.  573  ;  R.  v. 
Upton  Gray,  10  B.  &  C.  804;  Nelson 
r.  Moon,  3  McLean,  319;  Sumner  r. 
Sebec,  3  Greenl.  223;  Isbell  v.  R.  R. 
25  Conn.  556;  Farr  v.  Swan,  2  Penn. 
St.  245;  Byington  v.  Allen,  11  Iowa, 
3.     See  fully  infra,  §  1314. 

4  See  supra,  §§  60-77.  Watson  v. 
Ins.  Co.  2  Wash.  C.  C.  152;  Stratford 
«.  Sanford,  9  Conn.  275. 

616 


Books  and 
registries 
kept  by  de- 
ceased per- 
sons and 
public  in- 
stitutions 
admissible. 


6  Wetmore  v.  U.  S.  10  Pet.  647. 
«  State  V.  Smith,  30  N.  J.  L.  449. 
'  See  supra,  ^  77  et  seq. 

8  Supra,  §  135.  Norris  v.  Russell, 
5  Cal.  249. 

9  Supra,  §§  640-3. 

10  See  supra,  §§  72,  170-2. 

"  De  Armond  c.  Neasmith,  32  Mich. 
231.  See  The  Catharine  Maria,  L.  R. 
1  Ad.  &  Ec.  53 ;  and  see  supra,  §§ 
639-640. 

"  The  plaintiff's  counsel  offered  in 
evidence  a  record  of  the  weather  kept 
at  the  insane  asylum  for  a  number  of 
years,  for  the  purpose  of  showing  the 
temperature  of  the  weather  in  March, 


CHAP.  IX.]  BAPTISMAL    AND   MARRIAGE   REGISTRIES.  [§  649. 

however,  must  be  subjected  to  the  same  tests,  as  to  genuineness 
and  primariness,  as  will  presently  be  noticed  in  respect  to  parish 
records. 

§  648.  Under  certain  acts  of  Congress,  log-books  may  be  evi- 
dence of   the   facts   they  state.      Their   admissibility,    jorr.book 
however,  is  limited  to  the   points   the  statutes  desiff-   at''"'ssibie 

_       ■■■    _  °      under  act 

nate ;  ^  and  they  must  be  identified  as  duly  kept.^    But   of  Con- 
independent  of  the  statutory  provisions,  a  log-book  is 
admissible  when  kept  by   a  deceased  officer,  when  in  the  per- 
formance of  his  duties,^  or  by  an  officer  whose  attendance  is  un- 
obtainable.^ 

V.    EECORDS   AND   REGISTRIES   OF   BIRTH,  MARRIAGE,    AND   DEATH. 

§  649.  In  all  states  subject  to  the  Roman  law,  with  the  excep- 
tion of  France,  parish  records  are  regarded  as  primary        . 
evidence  of    births,  marriages,  and  deaths.     Ecclesias-   ords  ad- 
tics,  it  is  argued,  are  specially  charged  with  the  duty    iTonian'and 
of  keeping  such  records,  and  may  hQ  expected  to  keep   *^^"°"  ^'^' 
them  conscientiously.      From   a   period  as  remote  as  the  third 
century,   baptismal   registries    have   been   kept   by   the   parish 
clergy,  and  have  been  regarded  as  primd  facie  proof  of  the  facts 
which  they  certify.     Among  the  consequences  of  the  Reformation 
may  be  enumerated  an  increased  vigilance  in  guarding  this  class 
of  records.    The  reformed  churches,  acting  in  most  part  in  concert 
with  the  state,  established  stringent   rules  for  the  direction  in 
this  respect  of  the  parish  minister,  who  was  at  the  same  time 
subjected  to  civil  responsibility  for  error  in  the  making  up  of  his 

1868.     We  think  the  record  was  ad-  Ibid.  24  ;  and  see,  also,  IToafhcotc's 

missible,  and  comes  within  the  prin-  Divorce,   1    Macq.   S.   Cas.   II.  of  L. 

ciple  of  Sisson  r.  Cleveland  &  Toledo  277,  where  a  log-book,  being  prodnced 

R.  R.  Co.  14  Mich.  497."  De  Armond  to  prove  that  an  oHicer  of  the  ship 

V.  Neasmith,  32  Mich.  231,  233.  was  at  a  certain  place  on  a  given  time, 

^  U.    S.    V.    Gibert,    2    Sumn.    19  ;  the  house  of  lords  required  evidence 

U.  S.  V.  Sharp,  Pet.  C.  C.  418.  of  that  fact. 

2  U.  S.  V.  Mitchell,  2  Wash.  C.  C.  The    Sick  and    Hurt   Books,   kept 

478.  under  act  of  parliament,  are  evidence 

'  See  supra,  §  238.  to  show  the  vessel   to  which   a  sailor 

*  See   D'Israeli  v.   Jcwett,    1    Esp.  belonged,   and  the   amount  of   wages 

427;  Barber  r.  Holmes,  3  Esp.  190;  duetohim.     R.  r.  Fit zger.ald,  1  Leach, 

Watson  V.  King,  4   Camp.  275  ;  R.  v.  20  ;  R.  v.  Rhodes,  Ibid.  24. 
Fitzgerald,  1  Leach,  20;  R.  r.  Rhodes, 

617 


§  651.]  THE   LAW    OF   EVIDENCE.  [BOOK  II. 

records,  and  the  Council  of  Trent  adopted  special  measures  to 
effect  the  same  end.^  By  the  action  of  this  council,  it  must  be 
remembered,  as  bearing  on  the  form  of  Roman  Catholic  regis- 
tries, it  is  sufficient  if  the  names  of  the  child  and  of  the  god- 
parents are  inscribed.  In  many  dioceses,  however,  more  minute 
regulations  have  been  made,  it  being  provided  that  the  time  of 
the  birth,  the  names  and  the  date  and  place  of  the  marriage  of 
the  parents,  should  be  specified,  and  that  these  details  should  be 
certified  to  by  the  father  and  god-parents.  The  regulations  of 
the  several  Protestant  churches  present  in  this  respect  much 
diversity,  sometimes  prescribing  that  merely  the  baptism  should 
be  recorded,  with  the  parents'  names,  sometimes  requiring  the 
date  and  place  of  the  parents'  marriage  to  be  given. 

§  650.  Parochial  registries  of  death  were  made  at  a  very  early 
period  of  the  church,  and  are  prescribed,  in  part  by  general 
councils,  in  part  by  particular  synods,  in  part  by  local  territorial 
laws. 

§  651.  Parochial  registries  of  marriages  are  of  later  origin, 
as  marriages  without  ecclesiastical  interposition  frequently  took 
place  prior  to  the  Reformation  and  the  Council  of  Trent ;  and 
even  when  the  benediction  of  a  priest  was  given,  this,  according 
to  the  better  opinion,  did  not  go  to  the  essence  of  the  institu- 
tion.^  The  Council  of  Trent,  however,  established  a  limitation 
which  it  is  important  to  keep  in  mind  when  we  examine  the 
marriage  registries  of  Roman  Catholic  parishes.  By  that  coun- 
cil it  was  ordained,^  "  habeat  parochus  librum,  in  quo  conjugum 
et  testium  noraina  diemque  et  locum  contracti  matrimonii  descri- 
bat,  quem  diligenter  apud  se  custodiat."  By  particular  councils 
further  details  have  been  exacted,  it  being  required  that  the 
priest  should  register  the  names  of  the  parents  of  the  persons 
married,  the  conditions  of  the  latter  as  to  prior  marriages  ;  the 
time  of  publishing  the  banns,  when  such  are  imposed  by  law ; 
and  the  nature  of  any  dispensations  which  may  have  been  issued 
to  facilitate  the  marriage.  By  several  Protestant  communions 
similar  duties  have  been  imposed.* 

^  See    Concil.    Trident,  sess.     24,         '  Concil.  Trident,  sess.  24,  cap.  1, 

cap.  2.  de  reformat. 

2  See  Wharton's    Confl.  of   Laws,         *  See  Boehmer,  Jus  paroch.  sect.  4, 

§  169 ;  and  also  App.  B.  cap.  iii.  §  8. 
618 


CHAP.  IX.]         BAPTISMAL   AND   MARRIAGE   REGISTRIES.  [§  653. 

§  652.  The  authority  of  such  registries  as  evidence,  in  the 
modern  Roman  law,  is,  by  tlie  better  opinion,  solely  the  result  of 
usage ;  and  the  same  usage,  according  to  the  same  law,  has  sanc- 
tioned the  reception  in  evidence  of  copies  of  such  books,  duly 
certified  by  the  proper  parish  authority.  But  for  such  evidence 
another  reason  can  be  given.  In  many  cases  (g.  g.  those  of 
legitimacy),  it  is  the  best  if  not  the  only  evidence  that  can  be 
obtained,  and  in  such  cases  it  should  be  received  for  what  it  is 
logically  worth.  Eminently  is  this  the  case  as  to  periods  and 
places  where  the  state  gives  the  making  of  such  registries  exclu- 
sively to  the  ecclesiastical  officers  of  a  parish ;  and  where  such 
officers,  therefore,  feel  themselves  bound  to  keep  their  records 
with  scrupulous  accuracy  and  fairness.  The  Roman  law,  as  now 
settled,  however,!  makes  it  essential  to  the  admission  of  such 
records:  first,  that  the  books  should  be  otiicially  kept,  in  the 
manner  prescribed  by  law  ;  secondly,  that  the  entries  should 
have  been  made  by  the  priest  or  pastor  himself,  or  that  each  en- 
try should  be  signed  by  him.  If  there  is  no  priest  or  pastor  in 
charge  at  the  time  of  the  entry,  then  the  authority  of  the  per- 
son making  the  entry  must  be  specially  proved.  Thirdly,  the 
authority  of  such  entries  is  dependent  upon  the  disintei-estedness 
of  the  person  by  whom  they  are  made ;  and  if  tiie  entry  be 
made  by  a  person  who  thereby  sustains  any  personal  claims  of 
his  own,  this  discredits  the  entry. 

§  653.  So  far  as  concerns  the  law  of  England  and  the  United 
States,  an  official  registry  is  admissible,  when  kept  in  when  duly 
conformity  with  law,  and,  when  duly  authenticated,  to  re^L^'tries 
prove  such  facts  as  the  law  requires  to  be  registered,  "jl^i"^""*' 
It  follows  that  whenever  a  baptismal,  marriage,  or  prove  facta, 
burial  registry  is  kept  in  accordance  with  statute,  such  regis- 
try, being  duly  authenticated,  is  admissible  to  prove  the  facts 
wliich  are  within  the  statutory  authority.^     Even  though  there 

1  Weiske,  Rechtslex.  in  loco.  Jackson  r.  People,  2  Scam.  232  ;  Glenn 

2  Gilb.  Ev.  (3d  ed.)  77;  Wihcn  v.     v.  Glenn,  47  Ala.  204. 

Law,  3  Stark.  R.  63  ;  May  v.  May,  2  "  Parish  registers  arc  in  tiio  nature 
Stra.  1073;  Draycott  u.  Talbot,  3  Bro.  of  records,  and  need  not  be  produced, 
P.  C.  564  ;  Doe  v.  Barnes,  1  M.  &  or  proved  by  subscribing  witnesses." 
Rob.  389.  See  State  v.  Wallace,  9  Per  Lord  Mansfield,  C.  J.,  Boit  v 
N.  H.  515  ;  State  v.  Horn,  43  Vt.  20 ;     Barlow,  Doug.  172.     They  are,  there- 

619 


§  653.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


be  no  enabling  statute,  there  is  much  strength  in  the  position 
that  as  the  canon  law,  so  far  as  concerns  the  law  of  marriage, 
is  part  of  Anglo-American  common  law,^  and  as  parish  records 
are  public  records  by  the  canon  law,  they  are  to  be  regarded 
by  us  as  public  records,  and  hence  admissible  in  evidence,  by 
our  own  common  law.^  Yet  as  this  position  is  open  to  doubt, 
and  is  in  conflict  with  English  rulings  excluding  registries  by 
dissenting  religious  bodies,  unless  supported  by  proof  aliunde 
as  to  their  accuracy  ;  ^  it  is  proper,  in  order  to  authenticate  the 
facts  stated  in  such  records,  to  call  the  person  by  whom  they  were 
made,  if  living,  to  testify  to  their  accuracy,  or  if  he  be  dead,  to 
prove  that  the  entries  were  made  by  him  in  discharge  of  his  du- 
ties. It  should  at  the  same  time  be  remembered,  that  a  copy  of 
a  foreign  registry  will  be  admitted  wherever  such  registry  is  kept 
in  accordance  with  the  local  law.'* 


fore,  provable  under  14  &  15  Vict.  c. 
19.  Re  Hall's  Estate,  9  Hare,  App.  xvi, 

A  burial  entry  is  evidence  to  prove 
death.  Lewis  v.  Marshall,  5  Peters, 
470. 

^  See  Wharton's  Confl.  of  Laws 
§  169  et  seq. 

2  Steyner  r.  Droitwich,  1  Salk.  281 ; 
S.  C.  12  Mod.  86;  Holt,  290;  Chou- 
teau V.  Chevalier,  1  Mo.  243  ;  Kings- 
ton r.  Lesley,  10  S.  &  R.  383;  Am. 
Life  &  Trust  Co.  v.  Rosenagle,  77 
Penn.  St.  507  ;  and  see  argument  of 
court  in  Kennedy  v.  Doyle,  cited  in- 
fra. 

8  Birt  V.  Barlow,  1  Doug.  191  ; 
Taylor,  ex  parte,  1  Jac.  &  Walk.  483; 
S.  C.  3  Man.  &  Ry.  430,  n.;  Whittuck 
V.  Waters,  4  C.  &  P.  375;  D'Aglie  v. 
Fryer,  13  L.  J.  N.  S.  Ch.  398;  Doe 
V.  Andrews,  15  Q.  B.  759;  Athlone's 
Claim,  8  CI.  &  F.  262;  Coode  v. 
Coode,  1  Curt.  Ec.  L.  764. 

So  as  to  the  Fleet  records,  Reed  v. 
Passer,  1  Esp.  213;  S.  C.  Pea.  R.  303; 
Doe  V.  Gutacre,  8  C.  &  P.  478. 

So  as  to  Irish  registers.  Stock- 
bridge  V.  QuickC,  3  C.  &  K.  305. 

620 


So  as  to  Jewish  registries.  Davis 
V.  Lloyd,  1  C.  &  K.  275. 

<  Perth  Peer.  2  H.  of  L.  Cas.  865, 
873,  874,  876,  877;  Abbott  v.  Abbott 
&  Godoy,  29  L.  J.  Pr.  &  Mat.  57;  4 
Swab.  &  Trist.  254,  S.  C. ;  Am.  Life 
&  Trust  Co.  V.  Rosenagle,  77  Penn. 
State,  cited  infra,  §  658.  In  the  ab- 
sence of  such  proof,  a  copy  of  a  bap- 
tismal register  in  Guernsey  has  been 
rejected  in  England.  Huet  v.  Le 
Mesurier,  1  Cox  Ch.  R.  275.  This  re- 
jection, according  to  Dr.  Lushington, 
was  "because  it  did  not  appear  by 
•what  authority  the  register  was  kept. 
Supposing  it  had  been  proved  that 
Guernsey  was  part  of  the  diocese  of 
Winchester,  which  it  is,  and  by  an- 
cient custom  a  register  was  required 
to  be  kept  there,  different  considera- 
tions might  have  applied  to  the  case. 
....  I  am  of  opinion  that  there  is 
no  ground  of  distinction,  supposing 
the  register  had  been  kept  by  order 
of  a  competent  authority,  between 
registers  kept  in  Guernsey  and  in  this 
country."  Coode  v.  Coode,  1  Curt. 
766. 


CHAP.  IX.]  BAPTISMAL   AND   MARBIAGE   REGISTRIES. 


[§  654. 


§  654.  We  have  already  seen  that  entries  kept  by  a  deceased 
person  in  the  course  of  his  business  are  admissible  as    ^/^^fimissi- 
primd  facie  proof  of  all  facts  relating  to  such  business,    ^^^  '"^'^O' 
in  all  cases  in  which  the  entries  bear  genuineness  on   bydc- 

CC<lS6Cl   DGT" 

their  face,  and  were  made  at  or  near  the  time  of  the  sons  in  the 
events  they  register.^  Independently  of  statutory  pre-  thdrbusi- 
scriptions,  the  entries  regularly  made  in  his  own  books,  "^^^' 
or  his  official  books,  by  a  clergyman,  or  by  the  recording  officer  of 
a  parish,  or  by  the  proper  functionary  of  a  religious  society,  are, 
after  his  decease,  evidence  of  all  facts  which  it  was  his  duty  offi- 
cially to  enter.2 


So  the  English  courts  have  rejected 
a  copy  of  the  marriage  register  kept 
in  the  Swedish  ambassador's  chapel 
at  Paris ;  Leader  v.  Barry,  1  Esp. 
353;  and  a  copy  of  the  register  of  the 
British  ambassador's  chapel  at  the 
same  place.  Athlone  Peerage,  8  CI. 
&  F.  362.  See,  also,  Dufferin  Peer. 
2  H.  of  L.  Cas.  47. 

They  have,  however,  received  an 
examined  copy  of  a  marriage  register 
in  Barbadoes,  it  appearing  that  by 
the  law  of  that  colony  such  register 
was  kept.  Coode  v.  Coode,  1  Curt. 
755,  7G6,  7G7,  per  Dr.  Lushington. 

A  book  found  in  the  hands  of  a 
town  clerk,  purporting  to  be  a  record 
of  the  births  and  marriages  in  a  town, 
though  without  title  or  attestation,  has 
been  received  in  evidence  as  prima 
facie  proof  in  a  civil  issue.  Sumner 
V.  Scbec,  3  Greenl.  223.  See  Jacoks 
V.  Gilliam,  3  Murph.  (N.  C.)47. 

1  Supra,  §  238. 

^  The  cases  on  this  topic  are  fully 
presented  in  an  opinion  by  Gray,  J., 
in  Kennedy  v.  Doyle,  10  Allen,  162, 
from  which  we  extract  the  following : 
"  The  English  judges,  adhering  to  the 
principle  of  admitting  in  evidence  as 
public  documents  those  registers  only 
which  the  law  required  to  be  kept, 
have  considered  all  others  as  mere 
private  memoranda,  and  have  refused 


to  admit  registers  regularly  kept  by 
dissenters  unless  supported  by  the  tes- 
timony of  the  person  keeping  them  or 
other  witnesses.  Birt  v.  Barlow,  1 
Doug.  171;  Newham  v.  Railhby,  1 
Phillim.  R.  315;  Ex  parte  Taylor,  1 
Jac.  &  Walk.  483;  S.  C.  3  Man.  & 
Ry.  430,  note ;  Doe  ?•.  Bray,  8  B.  & 
C.  813;  S.  C.  3  Man.  &  Ry.  428; 
AVhittuck  V.  "Waters,  4  C.  &  P.  375. 
Vice  Chancellor  Shadwell  refused 
even  to  admit  an  entry  in  the  register 
of  the  Roman  Catholic  chapel  of  the 
Sardinian  ambassador  in  London  as 
evidence  of  the  baptism  of  the  am- 
bassador's son.  D'Aglie  v.  Fryer,  13 
Law  Journal  N.  S.  Ch.  308.  '  '  The 
principle  on  which  entries  in  a  regis- 
ter are  admitted,'  said  Mr.  Justice 
Erie  in  a  recent  case,  '  depends  upon 
the  public  duty  of  the  person  who 
keeps  the  register  to  make  such  en- 
tries in  it,  after  satisfying  himself  of 
their  truth.'  Doe  v.  Andrews,  15  Q. 
B.  759.  See,  also,  Conway  v.  Beaz- 
ley,  3  Ilagg.  Eccl.  651;  Athione's 
Claim,  8  Clark  &  Fin.  262  ;  Earldom 
of  Perth,  2  II.  L.  Cas.  873,  874; 
Coode  I'.  Coode,  1  Curt.  Eccl.  764- 
767;  Ilubback  on  Succession,  161, 
365,  366,  514."   .... 

"  Lord  Chancellor  Plunket  repeat- 
edly admitted  the  books  of  a  Roman 
Catholic  chapel  in   Dublin,  made  by 

621 


§  655.] 


THE   LAW   OF  EVIDENCE. 


[book  n. 


§  655.  A  registry  of  baptisms,  however,  has  been  ruled  not  to 
Registry  ^®  proof  of  the  alleged  time  of  the  child's  birth,  but 
facts^t'har  ^^^^  ^^^^  ^®  ^^^  bom  at  the  date  of  the  baptism ;  ^ 
it  was  the     tbougli  it  seems  that  it  may  be  used,  with  other  indi- 

■writer's  °  .  "^ 

duty  to        catory  evidence,  to  show  the  place  of  birth,^  to  indicate 
age,2  and  to  infer   illegitimacy.*     In  Massachusetts  it 


record. 


Koman  Catholic  priests  whose  deaths 
and  handwriting  were  proved,  as  evi- 
dence of  marriages  and  baptisms;  and 
on  the  last  occasion,  after  argument, 
gave  this  reason  for  their  admission  : 
'  They  are  the  entries  of  deceased 
persons,  made  in  the  exercise  of  their 
vocation,  contemporaneously  with  the 
events  themselves  and  without  any  in- 
terest or  intention  to  mislead.'  O' Con- 
ner V.  Malone,  6  Clark  &  Fin.  576,  577; 
Malone  v.  L'Estrange,  2  Irish  Eq.  R. 
16.  In  some  modern  English  cases, 
the  judges  have  shown  an  inclination 
to  limit  the  admission  of  entries  made 
in  the  course  of  business;  and  to  rest 
the  earlier  decisions,  more  than  those 
who  made  them  did,  on  the  hypothesis 
that  the  entries  were  against  the  in- 
terest of  the  person  making  them. 
This  tendency  appears  very  strongly 
in  the  judgment  of  Lord  Denman. 
Chambers  v.  Bernasconi,  1  Cr.,  Mees. 
&  R.  347  ;  S.  C.4:  Tyrwh.  531  ;  Rex 
V.  Cope,  9  C.  &  P.  727. 
^  "  It  has  been  repeatedly  held  in  this 
commonwealth  that  the  book  of  a  bank 
messenger  or  a  notary  public,  kept  in 
the  usual  course  of  business,  though 
not  required  by  law,  is  competent  evi- 
dence after  his  death.  Welsh  v.  Bar- 
rett, 15  Mass.  380  ;  Porter  v.  Judson, 

1  Gray,  1  75.  Similar  decisions  have 
been  made  by  the  supreme  court  of 
the  United  States,  and  by  other  Amer- 
ican courts  of  authority.  NichoUs  v. 
Webb,  8  Wheat.  326  ;'  Gale  v.  Norris, 

2  McLean,  471  ;  Augusta  v.  Winsor, 
above  cited  ;  Sheldon  v.  Benham,  4 
Hill  (N.  Y.),  131  ;  Nourse  v.  McCay, 
2  Rawle,  70. 

622 


"  In  the  case  before  us  the  book  was 
kept  by  the  deceased  priest  in  the 
usual  course  of  his  office,  and  was 
produced  from  the  custody  of  his  suc- 
cessor ;  the  entry  is  in  his  own  hand- 
writing, and  appears  to  have  been 
made  contemporaneously  with  the 
performance  of  the  rite,  long  before 
any  controversy  had  arisen,  with  no 
inducement  to  misstate,  and  no  inter- 
est except  to  perform  his  official  duty. 
The  addition  of  a  memorandum,  that 
he  had  been  paid  a  fee  for  the  cere- 
mony, could  not  have  added  anything 
to  the  competency,  the  credibility,  or 
the  weight  of  the  record  as  evidence 
of  the  fact.  An  entry  made  in  the 
performance  of  a  religious  duty  is  cer- 
tainly of  no  less  value  than  one  made 
by  a  clerk,  messenger,  or  notary,  an 
attorney  or  solicitor,  or  a  physician,  in 
the  course  of  his  secular  occupation." 
Gray,  J.,  Kennedy  v.  Doyle,  10  Allen, 
165. 

1  R.  V.  Clapham,  4  C.  &  P.  29  ; 
Burghart  v.  Angerstein,  6  C.  &  P.  690; 
Wihen  v.  Law,  3  Stark.  R.  63  ;  Mor- 
rissey  v.  Ferry  Co.  47  Mo.  521 ;  though 
see  Wintle,  in  re,  L.  R.  9  Eq.  373. 

2  R.  V.  North  Petherton,  5  B.  &  C. 
508.  See  Clark  v.  Trinity  Church,  5 
W.  &  S.  266  ;  R.  V.  Lubbenham,  5 
B.  &  Ad.  968. 

3  R.  V.  Weaver,  L.  R.  2  C.  C.  R. 
85;  Whitcher  v.  McLaughlin,  115 
Mass.  168. 

4  Cope  V.  Cope,  1  M.  &  Rob.  271. 
The  registry  of  baptism  is  no  proof 
of  the  child's  legitimacy.  Blackburn 
V.  Crawfords,  3  Wall.  175. 


CHAP.  IX.]  BAPTISMAL   AND   MARRIAGE   REGISTRIES.  [§  657. 

has  been  accepted,  cumulatively  with  other  evidence,  to  prove 
the  date  of  birth. ^  Where,  however,  the  statute  provides  that 
births  shall  be  registered,  then  the  registry  is  primd  facie  proof 
of  the  birth  and  its  date.^  The  identity  of  the  person  referred 
to,  it  need  scarcely  be  added,  must  be  proved  aliunde.^  The 
marriage  registry  proves  not  only  the  fact  of  marriage  but  the 
time  of  celebration.*  The  mode  of  proving  marriage  will  be 
found  more  fully  discussed  in  a  prior  chapter.^ 

§  656.  To  make  entries  in  such  a  registry  admissible,  however, 
they  mu[st  be  made  at  first  hand.^     Thus,  a  minister's    ^     . 

c       1  •  1      •    •  T   1  Entries 

entry  of  a  baptism,  administered  by  another  person  be-    must  be 
fore  his  own  official  service  began,  the  information  of   ami 
the  baptism  having  been  given  him  by  the  clerk,  has   P"""'"!^'- 
been  ruled  inadmissible."     Yet  if  an  entry  be  of  a  fact  occurring 
within  the  certifying  party's  term  of  office,  it  is  not  fatal  tiiat  the 
act  certified  to  was  done  by  a  third  person,  if  such  third  person 
could  be  considered  as  in  any  sense  the  agent  of  the  incumbent 
who  certifies.     Thus  an  entry  of  a  burial  in  a  parish  book,  kept 
in  the  proper  depository,  has  been  admitted,  though  the  incum- 
bent did  not  himself  attend  the  burial,  and  made  the  entry  on 
the  report  of  the  person  officiating.^    When  the  entry  is  made  by 
the  proper  officer,  a  short  delay  in  enteting  is  not  fatal.^     It 
should  appear  that  the  original  is  in  the  proper  custody,^*^  which, 
in  England,  in  the  case  of  marriage,  baptismal,  and  death  regis- 
ters, is  with  the  incumbent,  and  not  the  parish  clerk. ^^ 

§  657.  At  common  law,  as  we  have  already  seen,  a  certificate 
from  a  party,  even  when  acting  officially,  that  he  has  Certificate 
done  a  particular  thing,  is  inadmissible  to  prove  such  "aJTima-" 
thing.     If  living,  he  must  be  called  to  prove  the  fact ;   '"'^sibie. 

^  Wliitcber     v.    McLaughlin,     115  the   register.      Saver   v.     Glossop,    2 

Mass.  1G7.  Exch.  409.  See  fully  supra,  §  77  e/  scq. 

2  Derby  v.  Salem,  30  Vt.  722 ;  Stoe-  ■*  Doe  v.  Barnes,  1  M.  &  Rob.  386  ; 

vcr  V.  Whitman,  G  Binney,  41G.     See  R.  v.  Ilawes,  1  Den.  C.  C.  270. 

Carskadden  v.  Poorman,  10  Watts,  82.  ^  Supra,  §§  84,  85. 

8  Morrissey  i'.  Ferry  Co.  47  l\Io.  521.  "*  See  supra,  §  246. 

Identity  must  be  shown  extrinsically,  ''  Doe   v.    Bray,    8    B.   &    C.   813  ; 

in   the  case  of  a  marriage,  either  by  Walker  v.  Wingfield,  18  Vcs.  443. 

proving  the  handwriting  of  the  par-  *  Doc  r.  Andrews,  1  M.  &  Rob.  386. 

ties,  or  by  calling  a  witness  who  was  ^  Derby  v.  Salem,  30  Vt.  722. 

present  at  the  marriage  ;  Birt  v.  Bar-  *"  Supra,  §  194  et  set]. 

low,  Douc  272;  but  the  handwriting  "  Doe  v.  Fowler,  19  L.J.  Q.  B.  151. 

may  be  spoken  to  without  producing  OLo 


§  650.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

if  dead,  it  may  be  proved  by  his  official  entries.^  This  rule  ap- 
plies to  certificates  of  marriage  and  of  birth.  Thus  the  certificate 
of  a  clergyman,  given  sixteen  years  after  a  marriage,  that  he  had 
married  the  husband  to  one  claiming  to  be  a  prior  wife,  cannot, 
by  itself,  be  received  to  establish  such  prior  marriage,  tliere  being 
no  record  of  such  marriage  in  the  register  of  the  church.^  Under 
the  Connecticut  statute,  however,  it  has  been  intimated  that  the 
certificate  of  baptism,  by  a  duly  authorized  minister,  is  conclu- 
sive ;  ^  and  such  seems  to  be  the  rule  under  the  Maine  statute,'* 
Generally,  when  authorized  by  statute,  such  certificates  become 
only  primd  facie  proof  of  the  facts  they  duly  set  forth. ^ 

§  658.  Unless  there  be  an  enabling  statute,  copies  are  inadmis- 
Copies  in-  sible  when  the  original  can  be  had.  Thus,  a  sworn 
admissi  e.  copy  of  ^  marriage  contract,  executed  in  the  presence 
of  the  lieutenant  governor  and  Spanish  couimandant  of  Upper 
Louisiana,  with  a  certificate  of  the  commandant  that  the  original 
was  deposited  in  the  archives  of  the  territory,  is  not  admissible 
to  prove  the  marriage.^  Yet  when  the  original  cannot  be  had 
an  exemplification  is  admissible,  for  the  reason  it  is  the  best  evi- 
dence attainable.'^  Thus  in  Pennsylvania,  a  certified  copy  of  an 
English  register  kept  by  the  Society  of  Friends  (or  Quakers) 
has  been  received.^  So  where  a  pastor  of  a  church  in  a  foreign 
country  testified  that  his  church  records  of  marriages  and  births 
had  been  kept  according  to  the  laws  of  the  country,  and  he  was 
the  proper  custodian  of  them,  and  that  they  were  received  by  him 
from  his  predecessor,  it  was  held,  that  extracts  from  the  records 
giving  the  genealogy  of  a  family,  sworn  by  him  to  be  correct, 
were  evidence  in  a  question  of  identity.^ 

§  659.  Where  a  statute  requires  the  return  of  a  certificate  of 
marriage  to  be  made  by  the  officiating  minister  to  the  county 

1  See  supra,  §  120.  «  Chouteau  v.  Chevalier,  1  Mo.  343. 

2  Gaines  v.  Relf,   2  How.  (U.  S.)     See  State  v.  Dooris,  40  Conn.  145. 
619.  7  Alivon  v.  Furnival,  1  C,  M.  &  R. 

8  Huntly  V.  Comstock,  2  Root,  99.  277;   Boyle   r.  Wiseman,   10  Ex.   R. 

*  Dole  V.  Allen,  4  Greenl.  527.  647;  Quiher  v.  Jones,   14   C.   B.  (N. 

^  Derby    v.     Salem,   30    Vt.    722;  S.)   747;  Coode  ?'.  'Coode,    1   Curtis, 

Jones's   Succession,    12  La.   An.   397.  765.    Supra,  §  130. 

See  Beates  v.  Retallick,  23  Penn.  St.  ^  Hyam  v.  Edwards,  1  Dall.  2. 

288.  9  American  Life  Ins.  &  Trust  Co.  v. 


Rosenagle,  77  Penn.  St.  507. 


624 


CHAP.  IX.]  CORPORATION   BOOKS.  [§  G61. 

clerk  for  record,  the  proper  mode  of  proving  such  fact  is  by 
an  exemplification  of  the  certificate.^  But  an  exemplication  of  a 
foreign  certificate  of  marriage  will  not  be  received  unless  it  be 
proved  that  the  record  was  kept  in  conformity  with  law,  and  that 
the  person  officiating  was  authorized  to  officiate.^ 

§  660.  We  have  already  observed  that  for  the  purpose  of  prov- 
ing pedigree,  and  other  matters  of  family  interest,  fam-   YAmiw 
ily  bibles  and  other  records  may  be  received.^     For  the   records  ad- 

.  "^  _        ,  nussible  to 

same  j)urpose  a  family  chart,  regarded  as  authoritative  prove  fam- 
by  the  family,  may  be  put  in  evidence.^ 

VI.   CORPORATION   BOOKS. 

§  661.  Where  a  corporation  keeps  books,  in  which  its  proceed- 
ings are  entered,  then  these  books  are  primary,  but   „   ,      , 
usually  only  primd  facie  evidence  of  such  proceedings,    corporation 
so  far  as  concerns  the  members  of  the  corporation,  as   against 
between  each  other,  or  as  against  the  corporation.^     So 
a  banker's  booiis  may  be  used  against   a  depositor,  when  such 
books  are  supported  by  the  oath  of  the  book-keeper.*^     But  with- 

1  Niles  V.  Sprague,  13  Iowa,  198.  Am.  Co.  v.  Sutton,  35  Pcnn.  St.  463; 

2  State  V.  Dooris,  40  Conn.  145.  McIIose  v.  Wheeler,  45  Penn.  St.  32; 
8  Supra,  §  219.  Grove  v.  Fresh,  9  Gill  &  J.  280;  Fitch 
*  North  Brookfield    v.  Warren,   16  i-.  Pinckard,   5   111.  69;  Fortin   r.  En- 
Gray,  171.  gine,   48   111.   451;  Merchants' Bk.  v. 

6  R.  V.  Mothersell,   1  Str.  93  ;   Mar-  llawls,  21  Ga.  334  ;  Duke  v.  Nav.  Co. 

riage  v.    Lawrence,  2   B.  &  Aid.  144;  10  Ala.  82;   Rayburn  i-.  Elrod,43  Ala. 

O wings  V.  Speed,  5  Wheat.  420;  War-  700.     See  State  v.  Thomas,  64  N.  C. 

ner  v.  Daniels,  1  Wood.  &  M.  90;  Cof-  74. 

fin  V.  Collins,  17  Me.  440;  Methodist  •»  Jordan  i;.  Osgood,  109  Mass.  457. 
Chapel  V.  Herrick,  25  Me.  354  ;  Slack  "  One  of  the  issues  involved  was  the 
V.  Norwich,  32  Vt.  818;  Brown  v.  insolvency  of  the  defendant  before  and 
Bank,  119  Mass.  69;  Goodwin  u.  Ann.  at  the  time  of  his  purchases.  It  was 
Co.  24  Conn.  591;  Lane  v.  Brainerd,  competent  to  show  what  money  he 
30  Conn.  5G5  ;  Highland  Turnpike  v.  had  in  the  bank  at  those  times.  For 
McKean,  10  Johns.  R.  154;  Partridge  this  purpose  the  books  of  the  bank, 
r.  Badger,  25  Barb.  146;  Van  Hook  ij.  supported  by  tlie  oath  of  the  book- 
Man.  Co.  1  Halst.  Eq.  137  ;  Devling  keeper,  were  a(lmissil)le.  Briggs  v. 
V.  Williamson,  9  Watts,  311  ;  Den-  Rafferty,  14  Gray,  525  ;  Adams  v. 
nison  «;.  Otis,  2  Rawle,  9;  Pittsburg  Coulliard,  102  Mass.  167."  Morton, 
V.  Clarke,  29  Penn.  St.  146;  Baving-  J.,  Jordan  v.  Osgood,  109  Mass.  464. 
ton  V.  R.  R.  34  Penn.  St.  358;  North 

VOL.  I.  40  625 


§  662.] 


THE   LAW    OF   P:V1DENCE. 


[book  II. 


out  such  verification  the  books  of  account  of  a  bank  are  not  evi- 
dence of  the  facts  indicated  by  the  entries.^ 

§  662.  Corporation  books,  however,  when  res  inter  alios  acta, 
cannot  at  common  hiw  be  used  to  sustain  a  claim  of  the 

But  not  as  .  . 

against        corporation  against  persons  not  members  of  the  corpo- 

s  rangers,  j^jj^^-j^^j^^  qj.  defeat  a  claim  of  such  persons  against  the 
corporation,  or  in  any  way  to  affect  strangers.^  Nor  can  they, 
when  the  officers  of  the  corporation  can  be  produced  to  verify 
the  facts,  be  used  in  suits  by  strangers  against  members  of  the 
corporation,  or  the  converse.^  Nor  can  they,  even  in  suits  by  a 
corporation  against  its  members,  be  used  as  proving,  in  behalf  of 
the  corporation,  self-serving  entries  ;  ^  nor  can  they  be  used  to 
prove,  against  the  corporation,  mere  private  agreements  of  the 
stockholders.^  But  the  minute  book  of  a  corporation  may  be  put 
in  evidence,  as  against  strangers,  to  prove  its  regular  organiza- 
tion ;  ^  or  other  evidential  (as  distinguished  from  dispositive) 
facts.''  And  as  admissions  by  members,  to  whose  inspection  such 
books  are  open,  entries  in  corporation  or  club  books  are  always 
admissible.^  The  mode  of  proving  such  books  is  elsewhere  no- 
ticed.^ 


1  White  V.  Ambler,  4  Seld.  170; 
Brewster  v.  Doane,  2  Hill,  537;  Ocean 
Nat.  Bank  of  N.  Y.  v.  Carll,  55  N.  Y. 
441. 

"  As  the  officers  of  the  bank  could 
not  speak  from  personal  knowledge,  it 
was  necessary  to  resort  to  the  entries 
made  by  the  discount  clerk.  These 
could  only  be  proved  by  the  clerk 
making  them,  as  it  appeared  he  was 
alive  and  within  the  state.  This  rule  of 
authenticating  records  of  this  charac- 
ter has  never  been  departed  from  in 
this  state.  4  Seld.  170;  2  Hill,  531, 
537."  Church,  Ch.  J.,  Ocean  Nat. 
Bank  of  N.  Y.  i;.  Carll,  55  N.  Y. 
441. 

3  London  v.  Lynn,  1  H.  Bl.  214  ; 
Wheeler  v.  Walker,  45  N.  H.  355; 
Highland  Turnpike  Co.  v.  McKean,  10 
Johns.  154  ;  New  England  Co.  v.  Van- 
dyke, 1  Stockt.  (N.  J.)  498;  Com.  v. 
Woelper,  3  S.  &  R.  29;  Graflf  r.  R.  R. 

626 


31  Penn.  St.  489;  Chase  v.  R.  R.  38 
111.215;  Ritchie  v.  Kinney,  46  Mo. 
298  ;  Union  Bk.  v.  Call,  5  Fla.  409.  In 
England,  by  statute,  such  books  have 
in  several  cases  been  made  admissible. 
Taylor's  Ev.  §  1581. 

8  Mudgett  V.  Horrell,  33  Cal.  25. 

*  Haynes  v.  Brown,  36  N.  H.  545. 
See  Marriage  v.  Lawrence,  3  B.  &  A. 
144. 

6  Black  V.  Shreve,  13  N.  J.  Eq. 
455.  See  Marriage  v.  Lawrence,  3  B. 
&  A.  144. 

^  Angell  &  Ames  on  Corp.  573; 
Grant  v.  Coal  Co.  1  Weekly  Notes  of 
Cases,  215.  See  Dennison  v.  Otis,  2 
Rawle,  9;  Devling  v.  Williamson,  9 
Watts,  311. 

'  Breton  v.  Cope,  Pea.  R.  30;  Marsh 
V.  Colnett,  2  Esp.  665;  Woonsocket 
V.  Sherman,  8  R.  L  564. 

8  Infra,  §  1131. 

9  Ibid. 


CHAP.  IX.] 


fflSTORIES   AND   ANNALS. 


[§  664. 


§  663.  In  matters  incidental  to  the  action  of  a  corporation,  as 
to  which  it  is  not  to  be  presumed  a  record  would  neces-  when  pro- 
sarily  be  made,  parol  evidence  of  the  action  of  the  corpora-  ° 
corporation  is  admissible ;  ^  and  so  when  it  is  proved  *'°"^g^°  k* 
that  a  record,  though  proper,  was  never  made;^  and  parol, 
when  a  corporation  refuses  to  produce  its  books,  these  may  be 
proved  by  parol. ^  When  a  corporation  acknowledges  an  agent 
as  such,  it  is  not  necessary  to  prove  his  appointment.^  It  is 
otherwise  when  it  is  sought  to  charge  the  corporation  with  the 
insulated  act  of  a  special  agent.^ 


VII.  BOOKS  OF  HISTORY  AND  SCIENCE;  MAPS. 

§  664.  A  book  published  by  a  private  person  involving  state 
ments  of  recent  facts  cannot,  unless  as  against  the  au- 
thor, be  received  as  evidence  of  the  facts  which  it  states. 
To  prove  such  facts  the  author  must  be  called  as  a  wit- 
ness whenever  he  is  within  the  process  of  the  court.^ 
Nor  can  such  book  be  received  when  secondary  ;  thus   thors  re- 

ceivflble* 

Dugdale's  Monasticon  Anglicanum  has  been  rejected 
as  evidence  to  show  that  the  Abbey  de  Sentibus  was  an  inferior 
abbey,  because  the  original  records  were  producible."     But  where 
the  author  is  out  of  the  reach  of  such  process,  then  a  book  of  his- 


Approved 
books  of 
history  and 
Reography 
by  de- 
ceased au- 


1  Bank  U.  S.  r.  Dandridge,  12 
Wheat.  G-4  ;  Davidson  v.  Bridgeport, 
8  Conn.  472  ;  Commercial  Bank  v. 
Kortright,  22  Wend.  348  ;  Partridge 
V.  Badger,  25  Barbour,  146  ;  Smiley 
V.  Mayor,  G  Heiskell,  604.  Supra, 
§77. 

*  Prothro  v.  Seminary,  2  La.  An. 
939. 

*  Supra,  §  153;  Thayer  v.  Ins.  Co. 
10  Pick.  326. 

*  Wharton  on  Agency,  §§  40,  59; 
Maine  Stage  Co.  v.  Longley,  14  Me. 
444.     See  supra,  §  77;  infra,  §  1315. 

^  Haven  v.  Asylum,  13  N.  Hamp. 
532. 

8  Morris  v.  Harmer,  7  Pet.  554  ; 
U.  S.  V.  Jackalow,  1  Black  U.  S. 
484;  Fuller  v.  Princeton,  2  Dane  Ab. 
ch.  48,  49;  Morris  v.  Edwards,  1  Ohio, 


524;  Houghton  r.  Gilbart,  7  C.  &  P. 
701. 

"  A  book  published  in  this  country, 
by  a  private  person,  is  not  competent 
evidence  of  facts  stated  therein,  of 
recent  occurrence,  and  which  might 
be  proved  by  living  witnesses,  or  other 
better  evidence  ;  and  the  book  in  (jues- 
tion,  not  being  shown  to  have  been 
approved  by  any  public  authority,  or 
to  be  in  general  u^e  among  merchants 
or  underwriters,  had  no  tendency  to 
show  that  the  island  of  Navassa  was 
commonly  called  and  known  as  aguano 
island."  Gray,  J.,  Whiton  v.  Ins. 
Co.  109  Mass.  31. 

As  to  how  far  a  court  will  take  ju- 
dicial notice  of  past  history,  see  supra, 
§  338. 

T  Salk.  281. 

627 


§  664.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


tory,  travels,  or  chronicles  is  admissible  for  what  it  is  worth,  so  far 
as  concerns  facts  out  of  the  memory  of  living  men.^  And  as  a 
general  rule,  any  approved  public  and  general  history  (and  of 
the  fact  of  approval  the  court  will  take  judicial  notice^)  is  ad- 
missible to  prove  ancient  facts  of  a  public  nature  either  at  home 
or  abroad.^  It  is  otherwise,  however,  as  to  matters  of  a  private 
nature ;  such  as  the  descent  of  families,  or  even  the  boundaries  of 


^  Brounker  r.  Atkyns,  Skin.  14 ; 
Nealer.  Fry,  1  Salk.  281;  1  Mod.  86; 
Picton's  case,  30  How.  St.  Tr.  492; 
Morris  v.  Harmer,  7  Peters  U.  S.  554; 
Missouri  v.  Kentucky,  11  Wall.  395; 
Bogardus  v.  Trin.  Church,  4  Sandf. 
Ch.  633;  Com.  v.  Alburger,  1  Whart. 
R.  469;  State  v.  Wagner,  61  Me. 
181;  Charlotte  v.  Chouteau,  33  Mo. 
194.  See  Woods  v.  Banks,  14  N.  H. 
101  ;  McKinnon  v.  Bliss,  21  N.  Y. 
206. 

a  Supra,  §  282. 

«  B.  N.  P.  248-9;  Case  of  Warren 
Hastings,  referred  to  by  Ld.  Ellen- 
borough  in  Picton's  case,  30  How.  St. 
Tr.  492  ;  2  Ph.  Ev.  123  ;  Ld.  Bridge- 
water's  case,  cited  Skin.  15;  Brounker 
V.  Atkyns,  Skin.  14;  St.  Catherine's 
Hospital  case,  1  Yent.  151;  Neale  v. 
Fry,  cited  1  Salk.  281;  S.  C.  nom. 
Neal  V.  Jay,  cited  12  Mod.  86;  S.  C. 
nom.  Lady  Ivy  and  Neal's  case,  cited 
Skin.  623.  The  authority,  however, 
of  the  three  last  cited  reports  is  weak- 
ened by  the  fact  that,  in  Mossom  v. 
Ivy,  10  How.  St.  Tr.  555,  apparently 
the  same  case,  while  no  chronicles  ap- 
pear to  have  been  offered  in  evidence, 
a  history  was  tendered  to  show  when 
Charles  the  Fifth  resigned;  Jeffries, 
C.  J.,  however,  rejected  the  history 
contemptuously,  blurting  out  that  it 
was  "  a  little  lousy  history,"  and  then 
asking,  "  Is  a  printed  history,  written 
by  /  know  not  who,  an  evidence  in  a 
court  of  law?  "  P.  625.  See  Pea.  Ev. 
82,  83. 

628 


In  a  Maine  case  we  have  the  fol- 
lowing :  — 

"  General  histories  of  painstaking 
authors,  long  since  deceased,  and  of 
established  reputation,  like  those  of 
Williamson  and  Belknap,  are  compe- 
tent evidence  upon  a  question  of  this 
nature.  No  one  claims  them  as  con- 
clusive or  infallible ;  but  carefully  used 
as  aids  and  guides,  and  accepted  as 
true  where  their  statements  are  uni- 
form and  consistent  with  the  evidence 
of  original  records,  and  admitted  or 
well  known  facts,  they  will  be  found 
of  great  service  in  arriving  at  a  satis- 
factory conclusion. 

''  The  case  of  Evans  v.  Getting,  6 
Car.  &  P.  586,  which  was  cited  at  the 
trial  against  their  admission,  and  which 
seems,  also,  to  be  the  basis  of  the  re- 
mark in  Greenleaf's  Evidence,  vol.  i. 
§  497,  to  the  effect  that,  in  regard  to 
the  boundaries  of  a  county,  they  are 
not  admissible,  would  be  found,  on 
examination,  by  implication,  to  favor 
the  admissibility  of  general  histories 
of  states,  like  those  of  Williamson 
and  Belknap.  In  that  case  it  was  a 
history  of  Brecknockshire  that  was  of- 
fered to  prove  the  boundary  between 
that  county  and  Glamorgan;  and  Al- 
derson,  B.,  rejected  it  with  the  re- 
mark :  '  The  writer  of  this  history, 
probably,  had  the  same  interest  in 
enlarging  the  boundaries  of  the  county 
as  any  other  inhabitant  of  it.  It  is 
not  like  a  general  history  of  Wales.'  " 
Barrows,  J.,  State  v.  Wagner,  61  Me. 
188. 


CHAP.  IX.]  SCIENTIFIC   TREATISES.  [§  665. 

counties.^  College  catalogues,^  and  peerage  lists,  and  army  and 
navy  lists,^  are  likewise  inadmissible,  if  offered  as  to  matters 
which  could  be  proved  by  living  witnesses.  So  the  fact  of  Sir 
William  Johnson's  ownership  of  the  "  Royal  Grant,"  is  a  private 
rather  than  a  public  incident,  and  cannot  be  proved  by  a  volume 
of  history,  it  being  open  to  proof  by  better  testimony.*  So  the 
Gazetteer  of  the  United  States,  without  further  authentication, 
cannot  be  received  to  prove  the  relative  distances  of  geographical 
points.^ 

But  to  illustrate  the  meaning  of  words  and  allusions,  books  of 
general  literary  history  may  be  referred  to.^  Thus  in  a  case  be- 
fore the  English  court  of  exchequer,^  it  was  ruled  that  works  of 
standard  authority  in  literature  may,  provided  the  privilege  be 
not  abused,  be  referred  to  by  counsel  or  a  party  at  a  trial,  in 
order  to  show  the  course  of  literary  composition,  and  explain  the 
sense  in  which  words  are  used,  and  matters  of  a  like  nature ;  but 
that  they  cannot  be  resorted  to  for  the  purpose  of  proving  facts 
relevant  to  the  cause.  And  Sir  Edward  Coke  lays  down,  "  Au- 
thoritates  philosophorum,  medicorum  et  poetarum  sunt  in  causis 
allegandae  et  tenendae."  ^ 

§  665.  For  several  reasons,  treatises  on  such  of  the  inductive 
sciences  as  are  based  on  data  which  each  successive  year   p^^^g  ^f 
corrects  and  expands,  must  be  refused  admission  when   miii'ctive 

1  '  _  science  not 

offered  to  prove  the  truth  of  facts  contained  in  such   usually  ad- 

T       ,       ^  T  .     1        .        1      ,  missible. 

treatises.  In  the  first  place,  a  sound  induction  last  year 
is  not  necessarily  a  sound  induction  this  year  ;  and  as  a  matter 
of  fact,  works  of  this  class,  when  they  do  not  become  obsolete,  are 
altered  in  material  features  from  edition  to  edition,  so  that  we 
cannot  tell,  in  citing  from  even  a  living  author,  Avhether  what 
we  read  is  not  something  that  this  very  author  now  rejects.^     In 

1  Stcyncr  v.  Droitwich,  Skin.  G23;         «  Supra,  §  282. 

1   Salk.  281;  12  Mod.   85;  Evans  v.        7  D^rby  v.  Oiiscley,  1  H.  &N.  1. 
Getting,  6  C.  &  P.  ."380.  «  Co.  Lit.  2G4  a ;  Best's  ICvidcnce, 

2  State  V.  Daniels,  44  N.  II.  383.  802. 

8  Miirchmont   Peer.   Min.    Ev.    62,  »  "The    great   representative,     iu 

77;  "Wotniore  v.  U.  S.  10  Pet.  G47.  late  years,  of  British   geology,  is  the 

*  McKinnon  v.  Bliss,  21  N.  Y.  206.  late    Sir    Ch.irles    Lyell.     But    a  few 

6  Spalding  v.  Hedges,  2  Penn.   St.  months  before  his  death  lie  puhlished 

240.      In  the  Tiehhornc  trial,  maps  of  the  new  edition  of  his   Principles  of 

Australia  were  rceeived  to  show  where  Geology.    While  he  lived  he  bestowed 

the  defendant  lived.     Stepb.  Ev.  art.  upon  the  correetion  of  his  works  un- 

87.  629 


§  665.] 


THE   LAW   OF   EVIDENCE. 


[nOOK  II. 


the  second  place,  if  such  books  are  admitted  as  a  class,  those 
which  are  compilations  must  be  admitted  as  well  as  those  which 
contain  the  results  of  original  research  ;  the  purely  speculative 
must  come  in  side  by  side  with  the  empirical ;  so  that  if  such 
treatises  are  admitted  at  all,  it  will  be  impossible  to  exclude  those 
which  are  secondary  evidence  of  the  facts  they  state.  In  the 
third  place,  such  books,  without  expert  testimony,  cannot  gen- 
erally be  pointed  to  the  concrete  case  ;  with  expert  testimony, 
they  become  simply  part  of  such  testimony,  and  lose  their  in- 
dependent substantive  character  as  books.  In  the  fourth  place, 
the  authors  of  such  books  do  not  write  under  oath,  and  hence 
write  often  tentatively  ;  nor  are  they  examined  under  oath,  and 
hence  the  authorities  on  which  they  rest  cannot  be  explored,  nor 
their  processes  of  reasoning  tested.  Lastly,  such  works  are  at 
the  best  hearsay  proof  of  that  which  living  witnesses  could  be 
produced  to  prove.  Books  of  this  class,  therefore,  though  admis- 
sible, if  properly  authenticated,  to  prove  the  state  of  science  at 
a  particular  epoch,  are  inadmissible  as  independent  substantive 
evidence,  to  prove  the  facts  they  set  forth. ^    In  an  argument  to  a 


■wearied  labor.  Edition  after  edition 
was  called  for,  and  in  each  whole  pas- 
sages —  sometimes  whole  chapters  — 
were  remodelled.  A  quotation  from 
one  of  the  earlier  editions  may  not 
improbably  be  searched  for  in  vain 
in  those  which  subsequently  left  his 
hands  ;  and  there  are  not  wanting  in- 
stances in  which  an  opinion,  contested 
by  competent  adversaries,  was  quietly 
dropped  without  any  formal  parade. 
His  judgment  was  always  open  to  ap- 
peal, and  his  clear  and  manly  intellect 
acknowledged  no  finality  in  matters  of 
opinion  ;  therefore,  on  matters  which 
we  know  to  have  been  brought  before 
him,  with  their  accompanying  evi- 
dence, we  may  consider  ourselves  as 
possessing  his  final  verdict.  It  would 
not  be  fair,  when  quoting,  as  we  must 
do,  comments  unfavorable  to  some  of 
the  conclusions  at  which  Sir  Charles 
Lyell  arrived,  to  refrain  from  acknowl- 
edging the  care  with  which  his  opin- 

630 


ions  were  formed,  and  the  candor  with 
which  they  were  surrendered  if  ever 
his  better  judgment  considered  them 
untenable."  London  Quarterly  Rev. 
July,  1876,  Amer.  ed.  p.  115.  See, 
also,  the  changes  of  stand-point  of 
Prof.  Huxley,  as  given  in  Contempo- 
rary Review,  1876,  p.  122. 

1  Collier  v.  Simpson,  5  C.  &P.  73  ; 
Terry  v.  Ashton,  34  L.  T.  97  ;  Ash- 
worth  V.  Kittridge,  12  Cush.  193 
Washburn  v.  Cuddihy,  8  Gray,  430 
Whiton  V.  Ins.  Co.  109  Mass.  24 
State  V.  O'Brien,  7  R.  I.  336  ;  Har- 
ris V.  R.  R.  3  Bosw.  (N.  Y.)  7; 
Spalding  t'.  Hedges,  2  Penn.  St.  240; 
Yoe  V.  People,  49  111.  410  ;  Carter 
V.  State,  2  Ind.  617;  Gehrke  v. 
State,  13  Texas,  568 ;  Fowler  v. 
Lewis,  25  Texas,  Supp.  381.  As 
indicating  a  contrary  practice,  see 
Ordway  v.  Haynes,  50  N.  H.  159  ; 
Bowman  v.  Woods,  1  Greene  (Iowa), 
441  ;  Bowman  v.  Torr,  3  Iowa,  571  ; 


CHAP.  IX.J  SCIENTIFIC   TREATISES.  [§  667. 

court,  such  works  can  indubitably  be  read,  not  as  establishing 
facts  (unless  such  books  are  regarded  as  matters  of  notoriety,  as 
are  ordinary  dictionaries),  but  as  exhibiting  distinct  processes 
of  reasoning  which  the  court,  from  its  own  knowledge  as  thus  re- 
freshed, is  able  to  pursue.^  But  if  read  to  establish  facts,  capable 
of  proof  by  witnesses,  such  books  cannot  be  received.  "  Thus  it  is 
not  competent,  in  an  action  for  not  farming  according  to  covenant, 
to  refer  to  books  for  the  purpose  of  showing  what  is  the  best  way 
of  farming.  Nor  in  an  action  on  the  warranty  of  a  horse,  would 
it  be  allowable  to  refer  to  works  of  a  veterinary  surgeon  to  show 
what  is  unsoundness."  2  So  in  an  action  for  a  libel,  charging  the 
plaintiff  with  being  a  rebel  and  traitor,  "  because  he  was  a  Roman 
Catholic,"  the  defendant  was  not  allowed  to  justify  by  citing 
books  of  authority  among  the  Roman  Catholics,  which  seemed 
to  show  that  their  doctrines  were  inimical  to  loyalty.^ 

§  666.  It  has  indeed  been  held,  that  an  expert,  when  called  to 
state  the  sense  of  his  profession  on  a  particular  topic,  may  cite 
authorities  as  agreeing  with  him,  and  may  refresh  his  memory 
by  referring  to  standard  works  in  his  specialty.*  But  such  wit- 
nesses are  not  permitted,  in  their  testimony,  to  read  extracts 
from  books  on  physical  philosophy  as  primary  proof.^  It  is  clear, 
however,  that  when  an  expert  cites  certain  works  as  authority, 
they  may  be  put  in  evidence  to  contradict  him.^ 

§  667.  The  reasons  just  stated,  however,  fail   in    their  force 
when  we   approach  books  of    exact   science,  in  which   otherwise 
conclusions,  from  certain  and  constant  data  are  reached   "^  exact  *" 
by  processes  too  intricate  to  be  elucidated  by  a  witness   science. 

Broadhead  v.  Wiltse,   35  Iowa,   429  &   P.  74  ;  McNaghten's  case,  10  CI. 

(by  statute);  Cory  v.  Silcox,   6   Ind.  &   Fin.    200;    Pierson    v.    Iloajr,    47 

39;  Liming  v.  State,  1  Chand.  (Wise.)  Barb.  243  ;  Cory  v.  Silcox,  6  Ind.  39; 

264;  Kipon  v.   Bittel,  30  Wise.  614;  Harvey  v.  State,  40  Ind.   516  ;  Bow- 

Stoudennieier  v.  Williamson,   29  Ala.  man  v.  Torr,  3   Iowa,  571 ;  Ripon  v. 

558  ;  Merkle  v.  State,  37  Ala.  139.  Bittel,  30  Wise.  614;  St.ate  v.  Terrell, 

1  Sec    fully    supra,    §§     282,    335;  12  Rich.  (S.  C.)  321 ;  Merkle  r.  State, 

Harvey  v.  State,  40  Ind.  516.  37  Aha.  139. 

•■^  Per    Pollock,     C.    B.,    Darby    v.         ^  Com.  r.  Wilson,    1    Gray,    337  ; 

Ousely,  1  II.  &  N.  12.  Washburn  v.  Cuddihy,  8  Gray,  430  ; 

8  Darby  v.    Ousely,   1   II.  &  N.   1  ;  Com.    c.   Sturtivant,    117    M:iss.  122. 

Powell's  Evidence,  4th  ed.  105.  See  fully  supra,  §  438. 

*  Supra,  §  438 ;  Cocks  v.  Purday,  2        «  Ripon  v.  Bittel,  30  Wise.  614. 
C.  &  K.  270;  Collier  v.  Simpson,  5  C. 

631 


§  667.] 


THE    LAW    OF   EVIDENCE. 


[book  II. 


when  on  examination  on  a  stand.  The  books  containing  such 
processes,  if  duly  sworn  to  by  the  persons  by  whom  they  are 
made,  are  the  best  evidence  that  can  be  produced  in  that  partic- 
uhir  line.i  When  the  authors  of  such  books  cannot  be  reached, 
the  next  best  authentication  of  the  books  is  to  show  that  they 
have  been  accepted  as  authoritative  by  those  dealing  in  busi- 
ness with  the  particular  subject.  Hence  the  Carlisle  and  North- 
ampton Tables  have  been  admitted  by  the  courts  as  showing 
what  is  the  probable  duration  of  life  under  particular  condi- 
tions.2  In  order  to  verify  the  book  it  is  proper  to  prove,  by  a 
witness  qualified  to  speak  to  the  point,  that  it  is  in  use  in 
the  particular  line  of  business  to  which  the  book  relates.^     It 


*  See  supra,  §  134. 

2  Mills  r.  Catlin,  22  Vt.  106;  Schell 
V.  Plumb,  55  N.  Y.  598  ;  Bank  v.  Ho- 
gendobler,  3  Penn.  L.  J.  37  ;  5.  C.  4 
Penn.  L.  J.  392;  Bait.  R.  R.  v.  State, 
33  Md.  542;  Williams's  case,  3  Bland 
Ch.  221;  Donaldson  v.  R.  R.  18  Iowa, 
280  ;  David  v.  R.  R.  41  Ga.  223. 

"An  exception  was  taken  by  the 
counsel  to  the  reception  of  the  North- 
ampton Tables  as  evidence  tending  to 
show  the  probable  duration  of  the  life 
of  the  plaintiff.  It  may  be  remarked 
that  the  objection  thereto  was  general, 
not  based  upon  the  want  of  prelimi- 
nary pi'oof,  showing  their  genuineness 
or  want  of  identity  with  those  long  in 
use  by  insurance  companies  and  courts 
for  this  purpose.  These  tables  were 
used  by  the  supreme  court  in  Wager 
V.  Schuyler,  1  Wend.  553,  for  this 
very  purpose,  in  an  action  of  covenant 
where  the  probable  duration  of  life 
was  determined  by  the  court  in  this 
way,  upon  a  verdict  subject  to  the 
opinion  of  the  court.  That  th'ey  have 
been  long  so  used  by  the  court  of 
chancery  in  this  state,  and  courts  of 
equity  in  England,  is  too  well  known 
to  require  any  citation  of  cases.  They_ 
have  been  adopted  by  a  rule  of  the 
supreme  court  for  this  purpose.  Rule 
85.     It  would  be  singular,  indeed,  if, 

632 


under  these  facts,  they  were  to  be  held 
inadmissible,  when  the  same  fact  was 
to  be  determined  by  a  jury.  They 
were  competent  in  connection  with 
the  proof  given  as  to  the  health,  con- 
stitution, and  habits  of  the  plaintiff. 
No  complaint  is  made  of  the  charge  in 
this  respect."  Grover,  J.,  Schell  v. 
Plumb,  55  N.  y.  598. 

3  Rowley  v.  R.  R.  L.  R.  8  Exch. 
226.  In  this  case  it  was  said  by 
Blackburn,  J.  :  — 

"  Now,  with  the  view  of  ascertain- 
ing the  probable  duration  of  a  partic- 
ular life  at  a  given  age,  it  is  material 
to  know  what  is  the  average  duration 
of  the  life  of  a  person  of  that  age. 
The  particular  life  on  which  an  an- 
nuity is  secured  may  be  unusually 
healthy,  in  which  case  the  value  of 
the  annuity  would  be  greater  than  the 
average  ;  or  it  may  be  unusually  bad, 
in  which  case  the  value  would  be  less 
than  the  average  ;  but  it  mu^t  be  ma- 
terial to  know  what,  according  to  ex- 
pei'ience  of  insurance  companies,  the 
value  of  an  annuity  secured  on  an  av- 
erage life  of  that  age  would  be.  In 
the  present  case,  with  a  view  of  ena- 
bling the  jury  to  estimate  the  value  of 
the  annuity,  a  witness  was  called  who 
stated  that  he  was  an  accountant,  Jic- 
quainted  with  the  business  of  insur- 


CHAP.  IX.] 


SCIENTIFIC   TABLES. 


[§  Q^- 


should  at  the  same  time  be  remembered  that  -while  the  Carlisle 
and  other  tables  may  be  received  to  prove  certain  results  of  a 
large  induction,  they  cannot  be  permitted  to  control  a  litigation, 
as  to  the  value  of  a  life  estate,  so  as  to  work  substantial  injustice.^ 


ance  companies,  and  who  referred  to 
the  Carlisle  Tables,  to  which,  he  said, 
life  insurance  companies  referred  for 
obtaining  information  as  to  the  aver- 
age duration  of  lives.  He  gave  evi- 
dence that,  according  to  those  tables, 
the  average  and  probable  duration  of 
a  life  of  forty  years  is  27.G,  and  that 
of  a  life  of  sixty-one  is  13.82  years; 
and  that  the  sum  which  would  pur- 
chase an  annuity  of  £200  on  the  life 
of  a  person  of  sixty-one  years  is 
£2,000.  It  is  observable  that  as  the 
mother's  annuity  was  for  the  joint 
lives  of  herself  and  son,  not  for  her 
own  life,  this  last  question  was  not 
relevant,  but  that  seemed  to  have  es- 
caped notice. 

''  The  first  exception  is  as  to  the  re- 
ception of  this  evidence.  We  think 
the  probable  and  average  duration  of 
a  life  of  that  age  was  material,  and  we 
do  not  see  how  that  could  be  better 
shown  than  by  proving  the  practice  of 
life  insurance  companies,  who  learn  it 
by  experience.  It  was  objected  that 
the  witness  was  not  an  actuary,  but 
only  an  accountant,  but  as  he  gave 
evidence  that  he  was  experienced  in 
the  business  of  life  insurance,  we  think 
his  evidence  was  admissible,  though 
subject  to  remarks  on  its  weight.  We 
therefore  think  that  the  first  exception 
cannot  be  maintained." 

See,  also,  Ordway  v.  Ilayncs,  50  N. 
H.  159,  where  it  was  said  that  engrav- 
ings of  scientific  results  might  be  used 
to  illustrate  an  argument. 

1  In  Shippen's  Ai)peal  (Piatt's  Est.), 
2  Weekly  Notes  of  Cas.  408,  where 
the  evidence  was  that  a  husband  and 
wife  executed  a  mortgage  of  the  wife's 
land  for  $12,000,  of  which  amount  the 


husband  appropriated  S4,221  to  his 
own  use,  and  subscquentlj'  made  an 
assignment  for  the  benefit  of  his  cred- 
itors; and  after  the  death  of  the  wife, 
the  land  was  sold  by  the  sheriff  under 
the  mortgage,  after  payment  of  which 
thei'e  remained  for  distribution  812,- 
000,  which  was  claimed  by  a  devisee 
of  the  wife,  and  also  by  the  husband's 
assignees  ;  it  was  ruled  by  the  su- 
preme court  of  Pennsylvania,  that  the 
value  of  the  husband's  life  interest  aa 
tenant  by  the  curtesy  was  to  be  com- 
puted at  one  third  the  fee,  and  not  ac- 
cording to  the  Carlisle  Tables. 

"  As  to  the  measure  of  the  life  es- 
tate of  Clayton  T.  Piatt  "  (the  life 
tenant),  said  the  court,  "  we  say  that 
the  Carlisle  Tables  are  not  authorita- 
tive. They  answer  well  their  proper 
purpose,  to  ascertain  the  average  du- 
ration of  life,  so  as  to  protect  life  in- 
surers against  ultimate  loss  upon  a 
large  number  of  policies,  and  thereby 
to  make  a  profit  to  the  shareholders. 
But  an  individual  case  depends  on  its 
own  circumstances,  and  the  relative 
rights  of  the  life  tenant  and  remain- 
der-man are  to  be  ascertained  accord- 
ingly. 

"  A  consumptive  or  diseased  man 
does  not  stand  on  the  same  plane  as 
one  of  the  same  age  in  vigorous  health. 
Their  expectations  of  life  differ  in 
point  of  fact.  A  court,  therefore, 
must  ascertain  the  actual  probable 
expectations  of  life  uf  the  party  as 
he  is,  or  must  ailopt  some  recognized 
approximate  standar<l  as  its  legal 
measure,  in  order  to  capitalize  the 
interest  he  is  entitled  to  for  life.  In 
this  case,  the  Carlisle  Tables,  it  is 
said,   would    give    the   value   of   the 

633 


668.] 


THE   LAW    OF   EVIDENCE. 


[book  II. 


§  668.  No  matter  what  may  bo  tlie  age  or  apparent  accuracy 

Authenti-  ^^  ^  map,  it  IS  iiot  receivable  in  evidence  of  reputation, 

admlsi'bie*  unless  it  be  traceable  to  or  shown  to  have  been  recog- 

to  prove  nized  by  persons  who  were  in  some  way  interested  in 

reputation.  •       i  i  •  • 

or  likely  to  have  had  knowledge  of  the  locality  which 
the  map  describes.^  Where,  however,  a  map  was  shown  to 
have  been  made  thirty  years  before  the  trial  by  a  surveyor,  upon 
information  derived  from  an  old  parishioner,  who  had  pointed 
out  to  the  surveyor  the  boundaries,  it  has  been  held  in  Eng- 
land that  the  map  becomes  admissible  on  proof  of  the  surveyor's 
death. 2  A  map  made  by  an  official  surveyor  is  evidence  if  for- 
tified by  his  oath,  if  his  evidence  be  procurable,  or  if  not,  by 
proof  of  his  official  station  and  of  his  handwriting.^  A  long 
acceptance  and  practical  adoption  by  the  public,  also,  may  be  a 
ground  for  the  admission  of  a  map  which  is  ancient,  and  taken 
from  the  proper  depository.*  Thus  an  ancient  map  or  survey 
reputed  to  be  such,  and  regarded  as  authority  in  respect  to 
the  land  described,  and  recorded  as  a  public  document  in  the 
proper  office  or  archives,  can  be  received  ?ls  primd  facie  proof  of 
public  boundaries  and  streets.^  So  the  map  of  the  village  of  St. 
Louis,  made  by  Auguste  Chouteau,  a  reputed  founder  of  the  vil- 
lage, in  1764,  which  was  about  the  time  the  village  was  founded, 
and  placed  by  him  in  the  United  States  office  for  the  record  of 
land   titles,  having  been  generally  regarded  as  a  public  paper 


life  estate  or  capitalized  interest  at 
S6,534.G0,  leaving  the  fee  simple  es- 
tate worth  but  S5,202.  The  dispro- 
portion is  quite  manifest.  We  are, 
therefore,  disposed  to  take  the  old 
common  law  rule  of  one  third  of  the 
whole  sum  as  the  present  value  of  the 
accumulated  interest  for  the  life  of 
Clayton  T.  Piatt.  This  gives  a  sum  of 
several  hundred  dollars  less  than  that 
received  by  him  out  of  his  wife's  mort- 
gage money." 

^  See  supra,  §  194;  Hammond  v. 
Bradstreet,  10  Ex.  R.  390.  See  Pipe 
V.  Fulcher,  1  E.  &  E.  Ill;  Johnston 
V.  Jones,  1  Black  (U.  S.),  209  ;  Jack- 
son V.  Frost,  5  Cow.  346;  Jackson  v. 
Vandyke,  1  Coxe  (N.  J.),  28;  Denn  v. 
634 


Pond,  1  Coxe  (N.  J.),  379;  Pfotzer  v. 
Mullaney,  30  Iowa,  197;  Avary  v. 
Searcy,  50  Ala.  54. 

2  R.  V.  aiilton,  1  C.  &  K.  58.  See, 
however,  Pollard  v.  Scott,  Pea.  R.  19. 
And  see  Dunn  v.  Hayes,  21  Me.  76  ; 
Stein  V.  Ashby,  24  Ala.  521;  and  su- 
pra, §§  194-199. 

s  Supra,  §  238;  Smith  v.  Strong,  14 
Pick.  128;  Com.  v.  Alburger,  1  Whart. 
R.  469;  Chisholm  v.  Perry,  4  Md.  Ch. 
31 ;  Cline  v.  Catron,  22  Grat.  378;  Sur- 
get  V.  Doe,  24  Miss.  118;  Gates  v. 
Kieff,  7  Cal.  124;  Doherty  i-.  Thayer, 
31  Cal.  140. 

4  Supra,  §§  194-7. 

6  Whithehouse  v.  Bickford,  29  N. 
H.  471. 


CHAP.  IX.] 


MAPS   AND   SURVEYS. 


[§  669. 


for  many  years,  and  kept  as  such  in  the  record  office,  may  be 
received  as  jjvimd  facie  evidence  of  the  plan  of  the  village.^ 
But  for  the  purpose  of  proving  the  location  of  streets,  a  map, 
made  even  by  a  city  surveyor  and  registered  in  tlie  proper  office, 
will  not  be  received,  if  such  map  was  made  without  authority, 
express  or  implied,  and  has  not  the  authority  of  age  and  accept- 
ance.2  A  fortiori,  such  maps  unacted  on  and  unrecorded  cannot 
be  received  when  made  by  a  stranger.^ 

§  669.  These  conditions,  however,  may  be  relaxed  as  to  an 
indisputably  ancient  map  obtained  from  its  natural  custodians.'* 
Thus  on  these  grounds  a  document  purporting  to  be  a  survey  of 


1  St.  Louis  V.  Erskine,  31  Mo.  110; 
Schools  V.  Risley,  10  Wall.  91. 

2  Harris  v.  Com.  20  Grat.  833. 

8  Marble  v.  McMinn,  57  Barb.  GIG. 

In  a  case  in  the  exchequer  cham- 
ber (Hammond  v.  Bradstreet,  10  Ex. 
390),  on  a  question  in  replevin  whether 
goods  wei-e  taken  in  Norfolk  or  Suf- 
folk, a  map  of  Suffolk,  purporting  to 
have  been  republished  in  1766,  with 
corrections  and  additions,  by  the  sons 
of  J.  K.,  from  a  map  published  in  1 736 
by  J.  K.,  who  then  took  an  accurate 
survey  of  the  whole  country,  was  ten- 
dered, to  show  that  the  locus  in  quo 
was  not  in  SufTolk.  It  was  produced 
by  a  magistrate  of  both  Norfolk  and 
Suffolk,  who  had  purchased  it  twelve 
or  fourteen  years  previously,  and  be- 
fore any  dispute  as  to  the  boundaries 
had  arisen.  The  court  rejected  the 
evidence,  chiefly  on  the  ground  that 
the  new  editors  did  not  appear  to  have 
had  any  personal  knowledge  of  the 
subject,  nor  to  be  in  any  way  con- 
nected with  the  district,  so  as  to  make 
it  probable  that  they  had  such  knowl- 
edge. We  must  consequently  hold, 
in  accordance  with  the  distinction 
heretofore  stated  (supra,  §§  194-7), 
that,  before  ancient  documents  can  be 
received  as  evidence  of  reputation,  it 
must  be  proved  that  they  have  come 
from  the  custody  of  a  person  who  is 


presumptively  connected  .sufficiently 
by  knowledge  with  the  matter  in  dis- 
pute, so  as  to  render  him  an  author- 
ity. They  must  also  bear  the  plain 
marks  of  authenticity.  Powell's  Evi- 
dence, 4th  ed.  157. 

But  the  map  must  go  to  the  spe- 
cific point  in  issue.  Thus,  to  prove  a 
public  right  of  way  over  a  manor,  a 
map  of  the  manor,  Avhich  had  been 
made  by  a  deceased  steward  of  the 
manor,  was  given  in  evidence.  The 
map  showed  lines  made  by  the  de- 
ceased witness,  which  indicated  clearly 
some  kind  of  way  over  the  locus  in  quo, 
but  contained  nothing  to  show  wliether 
the  way  was  a  public  one,  or  only  one 
of  several  occupation  ways  such  as  ex- 
isted on  the  manor.  If  the  way  had 
been  an  occupation  way,  it  would  have 
been  of  a  private  nature,  and  it  was 
admitted  could  not  be  proved  by  the 
evidence  which  had  been  given ;  and 
as  there  was  nothing  on  the  face  of  the 
map  to  show  that  it  was  a  public  way, 
and  the  map  had  been  uscil  only  to 
settle  the  boun<larios  of  the  copyholds 
of  the  manor,  it  was  held  to  be  inad- 
missible. Pipe  V.  Fulchor,  1  K.  &  E. 
111. 

*  See  supra,  §§  190-7;  Adams  v. 
Stanyan,  24  N.  H.  405;  Com.  r.  Albur- 
ger,  1  Whart.  K.  469;  Penny  Pot  Land- 
ing V.  Philadelphia,  16  Penn.  St.  79. 

635 


§  670.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


a  manor,  while  it  was  part  of  the  possessions  of  the  duchy  of 
Cornwall,  and  coming  out  of  proper  custody,  was  admitted  by 
Lord  Romill^^  in  a  late  case,^  as  evidence  of  the  boundaries  and 
customs  of  the  manor.^  But  the  testimony  of  a  recorder's  clerk, 
that  a  town  plan,  offered  as  a  link  in  a  chain  of  title,  liad  been 
in  deposit  in  the  office  for  more  than  six  years,  but  no  longer, 
is  not,  without  further  verification,  proof  of  authenticity.^  And 
such  maps  will  not  be  received  to  impeach  public  recorded  grants 
under  wliich  thei'e  has  been  long  possession.'* 

What  lias  been  just  said,  it  should  be  remembered,  applies 
to  questions  of  boundaries  and  public  landmarks.^  When  a  map 
is  introduced  as  a  link  of  title,  it  must  be  proved  in  the  way 
that  any  other  documentary  link  is  proved.^ 

§  670.  A   map    of    boundaries,    also,   is    admissible 

Maps  ad-  '^,  '■ 

missibie  against  the  party  by  whom  it  is  made  and  published, 
parties  and  and  against  his  successors  in  title.''  Such  maps,  how- 
pnvies.        ever,  must  be  properly  identified.^ 


^  Smith  V.  Earl  Brownlow,  L.  R.  9 
Eq.  241;  39  L.  J.  Ch.  636;  18  W.  R. 
271. 

2  Powell's  EviJence  (4th  ed.),  158. 

*  Franey  v.  Miller,  11  Penn.  St.  434. 
See  Pipe  v.  Fuleher,  1  E.  &  E.  111. 

*  Penny  Pot  Landing  v.  Phila.  16 
Penn.  St.  79. 

6  See  fully  supra,  §§  185-191. 

^  "  Pedigree  and  boundary  are  the 
excepted  cases  wherein  reputation  and 
hearsay  of  deceased  persons  are  re- 
ceived as  evidence.  The  statements 
of  deceased  persons  relative  to  boun- 
daries of  which  they  spoke  from  act- 
ual personal  knowledge,  have  been 
frequently  received  as  evidence  in  this 
state.  Caufman  v.  Cedar  Spring  Con- 
gregation, 6  Binn.  62,  63;  Buchanan 
I'.  Moore,  10  S.  &  R.  281;  Bender  i'. 
Pitzer,  3  Casey,  335.  And  ancient 
maps  and  surveys  are  evidence  to  elu- 
cidate and  ascertain  boundary  and  fix 
monuments.    Penny  Pot  Landing,  &c. 


V.  City  of  Philadelphia,  4  Harris,  91; 
Sample  v.  Robb,  Ibid.  319.  The  dis- 
tinction is  stated  by  Coulter,  J.,  in 
the  last  case,  to  be  between  drafts 
when  offered  for  title  and  when  of- 
fered for  boundary.  For  the  former 
purpose  none  but  such  as  are  shown 
to  bear  an  official  character  will  be 
received.  These  must  be  traced  to 
the  possession  or  office  of  the  sur- 
veyor, and  appear  to  have  been  made 
in  an  official  character.  Urket  v. 
Coryell,  5  W.  &  S.  79;  Woods  v.  Ege, 
2  Watts,  336-7 ;  Blackburn  v.  Holli- 
day,  12  S.  &  R.  140.  The  question 
here  being  one  of  the  possession,  and 
the  extent  of  it,  by  the  boundary 
known  as  Taylor's  line,  the  draft  be- 
ing properly  proved  and  traced,  was 
competent  evidence  to  aid  in  ascer- 
taining and  identifying  that  boun- 
dary." Agnew,  J.,  McCausland  v. 
Fleming,  63  Penn.  St.  38. 

■^  Bridgman  i'.  Jennings,  1  Ld.  Ray. 


*  See  supra,  §  644;  Sherras  v.  Caig,     Pet.  U.  S.  619.    See  Carroll  v.  Smith, 
7  Cranch,  34;  Chirac  v.  Reinecker,  2     4  Har.  &  J.  128.     Infra,  §  1156. 

636 


CHAP.  rX.]  DOCUMENTS.  [§  672. 


VIII.     GAZETTES  AND  NEWSPAPERS. 

§  671.  In    England,  by  the  Documentary  Evidence  Act,  tlie 
government  or  official  gazette  is  "^;ri7n(i/acze  evidence    ^ 
of  any  proclamation,  order,  or  regulation,"  of  the  gov-   evidence  of 
ernment  or  of  any  of  its  departments.    At  common  law,    ciai  docu- 
a  distinction  is  taken  in  this  connection  between  grants 
or  commissions  to  an  individual,  and  the  correspondence  of  the 
crown  with  the  public  as  a  body.     The  gazette  is  not  at  common 
law  evidence  of  the  grant  of  land  to  a  subject,^  nor  of  the  com- 
missioning of  an  officer  of  the  army  ;  ^  but  it  is  admissible  to 
prove  proclamations,  and  addresses  received  by  the  crown,  and 
other  matters  of  exclusively  public  importance,  and  as  to  which 
there  is  no  private  recoi'd  kept.^     The  same  distinction  has  been 
recognized  in  the  United  States.^ 

§  672.  It   is   frequently   important   that   a   party   should   be 

shown,  either    directly  or  inferentially,  to  be  familiar    jfg„.    j^. 

with  certain  facts.     Did  the  claimant  in  the  Tichborne    pejs  ad- 
missible to 

case,  for  instance,  when  in  Australia,  know  of  the  ad-   impute 
vertisements  calling  for  information  as  to  Roger  Tich-   of  facts  to 
borne,  and  of  the  circumstantial  account  of  the  Tich-    P*"^^' 
borne  family  published  about  that  time  in  the  London  Illustrated 
News?     In  order  to  afford  a  basis   from    which    knowledge    of 
facts  so  published  can  be  inferred,  it  is  necessary,  first,  to  prove 
the  publication  in  the  newspaper;  and  secondly,  incidents  which 
make  it  probable  that  the  publication  was  seen  by  the  person 
whom  it  is  sought  to  infect  with  notice.     In  the  Tichborne  trial, 
Cockburn,  C.  J.,  examines  with  great  acuteness  the  probabilities 
of  notice  under  such  circumstances,  as  helping  out  the  hypothesis 
that  the  claimant,  an  adroit  impostor,  was  in  this  way  stimulated 
and  in  some  way  prepared  to  undertake  the  work  of  simulation. 
If  there  is  any  evidence  making  it  probable  that  a  newspaper 

734;  Earl  v.  Lewis,  1  Esp.  1;  Wake-  i  K.  i;.  Holt,  5  T.  II.  \■V^. 

man   v.  West,   7  C.  &  P.  479;'  Doe  v.  -  K.  v.  Gardner,  2  Camp.  r)13. 

Lakin,    7   C.   &   P.  481  ;  Johnston  v.  »  Atty.     Gen.      v.    Tlu-akstone,     8 

Jones,   1   Black  U.  S.  209  ;  Crawford  Price,   89  ;    Van   Omeron   r.  Dowick, 

V.  Loper,  25  Barb.  449;  Kinj^sland  i'.  2  Camp.  44.     Sue  supra,  §  127. 

Cliittenden,   6    Lans.    15;  Burnett  v.  <  Brundred  v.  Del   lloyo,  20   N.J. 

Thompson,  13  Ired.  L.  379;  Cliic.  R.  L.    328;   Lurton   v.   Gilliam,  1    Scam. 

R.  t;.  Banker,  44  111.  26.     See,  how-  577. 
ever,  Bearce  i'.  Jackson,  4  Mass.  408. 

637 


§  674.] 


THE  LAW   OF  EVIDENCE. 


[book  II. 


Newspaper 
notice  of 
dissolution 
of  partner- 
ship admis- 
sible. 


reached  the  eye  of  a  particular  person,  it  would  seem  that  the 
question  of  notice  is  one  for  the  jury. 

§  673.  It  is  held  that  so  far  as  concerns  those  who  have  never 
dealt  with  a  firm,  notice  of  its  dissolution  in  the  Ga- 
zette (or,  it  would  seem,  in  any  other  pi;blic  newspa- 
per in  which  such  notices  are  usually  printed),  will  be 
admissible  ;  ^  and  that  even  as  to  persons  having  had 
old  and  familiar  dealings  with  the  firm,  the  newspaper  may  be 
received  as  cumulative  evidence  of  notoriety  of  dissolution,  after 
first  proving  the  fact  of  dissolution  by  deed  or  otherwise.^  By 
the  same  process  may  be  inferred  knowledge  of  the  arrival  of  a 
stage-coach  at  a  particular  hour.^  But  in  order,  in  the  latter  class 
of  cases,  to  enable  the  newspaper  to  be  received  as  adequate  proof 
of  notice,  it  is  necessary  that  it  should  in  some  way  be  brought 
home  to  the  party.  How  this  may  be  done  will  be  presently  seen. 
§  674.  A  newspaper,  whose  office  it  is  to  procure  and  publish 
jq^g^g.  market  prices,  and  whose  editors  are  proved  to  apply 

paper,  ^o  brokers  and  others  dealing  with  the  staple  for  infor- 

when  ven-  ^  _  _  _         ^  ,  ^ 

fied,  ad-  mation,  is  primd  facie  evidence  of  such  prices,  at  a  time 
prove  price  when  living  witnesses  to  the  fact  cannot  be  obtained, 
current.  g^xch  evidence  is  the  best  procurable,  and  may  be  re- 
garded in  the  same  light  as  are  registries  kept  by  persons  in  dis- 
charge of  their  business  duties.*  But  such  publications  are  not 
admissible  without  evidence  showing  that  the  prices  current  are 
drawn  from  reliable  sources.^ 


1  Newsome  v.  Coles,  2  Camp.  617; 
Hart  V.  Alexander,  7  C.  &  P.  753. 
See  infra,  §  675. 

2  Hart  V.  Alexander,  7  C.  &  P. 
753. 

3  Com.  V.  Robinson,  1  Gray,  555. 

*  Cliquot's  Champagne,  8  Wallace, 
117, 

5  Whelan  v.  Lyncli,  60  N.  Y.  469. 
See  Whitney  v.  Thacher,  117  Mass. 
523  (cited  at  large,  supra,  §  449)  ; 
Sisson  V.  Cleveland  R.  R.  14  Mich. 
489  ;  Payson  v.  Everett,  12  Minn. 
216. 

From  Whelan  v.  Lynch,  60  N.  Y 
474,  we  extract  the  following  :  — 

* '  Independent  of  the   charge,   the 

638 


court  was  also  in  error,  I  think,  in  ad- 
mitting the  shipping  and  price  current 
list  as  evidence  of  the  value  of  the 
wool,  without  some  proof  showing 
how  or  in  what  manner  it  was  made 
up,  where  the  information  it  contained 
was  obtained,  or  whether  the  quota- 
tions of  prices  made  were  derived 
fi'om  actual  sales  or  otherwise.  It  is 
not  plain  how  a  newspaper,  contain- 
ing the  price  current  of  merchandise, 
of  itself,  and  aside  from  any  explana- 
tion as  to  the  authority  from  which  it 
was  obtained,  can  be  made  legitimate 
evidence  of  the  facts  stated.  The  ac- 
curacy and  correctness  of  such  pub- 
lications  depend    entirely    upon   the 


CHAP.  IX.] 


GAZETTES   AND  NEWSPAPERS. 


[§  674  a. 


§  674  a.  Where  advertisements  in  a  newspaper  can  be  traced 


sources  from  which  the  information  is 
derived.  Mere  quotations  from  other 
newspapers,  or  information  obtained 
from  those  who  have  not  the  means  of 
procuring  it,  would  be  entitled  to  but 
little  if  any  weight.  The  credit  to  be 
given  to  such  testimony  must  be  gov- 
erned by  extrinsic  evidence,  and  can- 
not be  determined  by  the  newspaper 
itself  without  some  proof  of  knowl- 
edge of  the  mode  in  which  the  list  was 
made  out.  As  there  was  no  such  tes- 
timony the  evidence  was  entirely  in- 
competent, and  should  not  have  been 
received.  The  authorities  cited  to 
sustain  the  ruling  of  the  judge  in 
regard  to  the  admission  of  this  evi- 
dence, do  not  include  any  such  case. 

"In  Lush  V.  Druse,  4  Wend.  314, 
the  witness  who  testified  as  to  the 
market  price  had  inipiired  of  mer- 
chants dealing  in  the  article,  and  ex- 
amined their  books,  thus  giving  the 
source  of  his  knowledge.  In  Terry  v. 
McNiel,  58  Barb.  241,  it  does  not  ap- 
pear in  what  form  the  question  was 
presented,  or  whether  any  preliminary 
evidence  had  been  introduced  to  show 
the  accuracy  of  the  newspaper  quota- 
tions. In  Cliquot's  Champagne,  3 
Wallace,  117,  it  appeared  that  the 
price  current  was  procured  directly 
from  dealers  in  the  article,  and  was 
verified  by  testimony  which  tended  to 
show  its  accuracy.  The  objections 
made  to  the  evidence  were  sufficient, 
and  its  admissibility  cannot  be  upheld 
within  these  cases  cited."  JMiiler,  J., 
Whclan  v.  Lynch,  GO  N..  Y.  47-J. 

In  reference  to  this  case  we  find,  in 
the  Albany  Law  Journal  for  1876,  p. 
317,  a  communication  in  which  it  is 
stated  that  the  recital,  in  the  above 
opinion,  of  the  fiicts  in  Terry  v.  Mc- 
Niel, 58  Barb.  241,  is  incomplete,  and 
that  in  the  latter  case  there  was  no  pre- 
liminary evidence  showing  the  accu- 


racy of  the  newspaper  quotations.  It 
is  also  stated  that  the  latter  case  was 
"  unanimously  afilrmed  on  the  opinion 
of  Judge  Piatt  Potter,  as  found  in  58 
Barbour,  241.  It  will  be  perceived, 
therefore,  that  if  the  court  of  appeals 
are  right  in  their  decision  in  Go  N.  Y., 
they  were  wrong  in  their  disposition 
of  58  Barb.  241." 

The  ruling  in  Cliquot's  Champagne 
is  thus  explained  in  a  subsequent  judg- 
ment of  the  supreme  court  :  — 

"  The  cases  of  Fennerstein's  Cham- 
pagne and  Cliquot's  Champagne,  re- 
ported in  the  3d  AVallace,  114,  145,  do 
not  infringe  upon  this  rule.  Those 
were  cases  where  it  became  necessary 
to  establish  the  market  value  of  cer- 
tain wines  in  France,  and  such  value 
could  only  be  ascertained  by  sales 
made  by  dealers  in  those  wines  in  dif- 
ferent parts  of  the  country,  and  the 
prices  at  which  they  were  offered  for 
sale,  and  circumstances  affecting  the 
demand  for  them.  It  would  not  be 
proved  by  a  single  transaction,  for 
that  may  have  been  excej)tional  ;  the 
sale  may  have  been  made  above  the 
market  price,  or  at  a  sacrifice  below 
it.  Market  value  is  a  matter  of  opin- 
ion which  may  require  for  its  forma- 
tion the  consideration  of  a  great  va- 
riety of  facts.  To  arrive  at  a  just 
conclusion  prices  current,  s.ales,  ship- 
ments, letters  from  dealers  and  man- 
ufacturers, may  properly  receive  con- 
sideration. A  party,  without  liaving 
been  previously  engaged  in  any  mer- 
cantile transaction,  may  be  able  to 
give  with  groat  accuracy  the  market 
value  of  an  article  the  dealing  in 
which  he  has  watched  ;  anil  in  stating 
the  grounds  of  his  opinion  as  a  wit- 
ness, he  may  very  ]iroj)crly  n-fer  to  all 
these  circumstances,  and  evi'u  the  ver- 
bal declarations  of  dealers.  Alfonso 
V.  United  Slates,  2  Story,  42G.     Now, 

639 


§  675.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


to  a  particular  party,  so  as  to  show  that  he  is  their  author,  such 
But  not  advertisements  are  evidence  against  liim,  but  not  other- 
for'oUier'  wise.^  When,  however,  the  object  is  to  charge  a  partic- 
purposes.  ^jg^j,  advertisement  on  a  particular  person  as  its  author, 
it  is  necessary  —  so  has  it  been  ruled  in  Pennsylvania  —  to  produce 
the  original  manuscript.  It  is  only  when  the  latter  is  non-pro- 
ducible that  the  printed  copy  can  be  received.^  So  far  as  con- 
cerns ordinary  events,  it  need  scarcely  be  added,  a  newspaper 
cannot  be  produced  as  evidence.^  Thus  the  identity  or  history  of 
a  person  cannot  be  proved  by  a  newspaper  notice  ;*  although,  as 
we  have  seen,  it  is  admissible  to  show  such  an  advertisement, 
for  the  purpose  of  explaining,  as  in  the  Tichborne  case,  the  action 
of  another  person  having  notice  of  such  death. 

§  675.  It  has  been  held  not  enough,  in  order  to  bring  home  to 


in  the  cases  in  3d  Wallace,  statements 
of  dealers  in  the  champagne,  or  of 
agents  of  dealers,  made  in  the  course 
of  their  diuies  as  agents,  and  letters 
from  dealers,  and  prices  current,  were 
admitted  as  bearing  upon  the  point 
sought  to  be  established,  the  market 
value  of  the  wines.  There  is  no  anal- 
ogy between  these  cases  and  the  one 
at  bar.  What  was  the  market  value 
of  the  wines  in  France  was,  as  already 
said,  a  matter  of  opinion.  Whether 
the  defendants  had  in  their  possession 
or  custody,  between  certain  dates, 
200,000  gallons  of  distilled  spirits,  or 
any  other  quantity,  for  the  purpose  of 
selling  the  same  with  a  design  to  avoid 
the  payment  of  the  duties  thereon, 
was  a  question  of  fact  and  not  of  opin- 
ion. 

"  If  now  we  apply  the  rule  which 
we  have  mentioned  to  the  certificate 
books  of  the  canal  collectors,  their  in- 
admissibility is  evident.  They  were 
not  competent  evidence  as  declara- 
tions of  the  collectors,  for  the  collec- 
tors had  no  personal  knowledge  of  the 
matters  stated  ;  they  derived  all  their 
information  either  from  the  bills  of 
lading   or   verbal   statements   of   the 

640 


captains.  Nor  were  the  books  com- 
petent evidence  as-declarations  of  the 
captains,  because  it  does  not  appear 
that  the  bills  of  lading  were  pre- 
pared by  them,  or  that  they  had  per- 
sonal knowledge  of  their  correctness, 
or  that  their  verbal  statements,  when 
the  bills  of  lading  were  not  produced, 
were  founded  upon  personal' knowl- 
edge; and  besides,  many  of  the  cer- 
tificates were  admitted  without  call- 
ing the  captains  who  signed  them, 
and  without  proof  of  their  death  or 
inaccessibility."  Field,  J.,  ChaflFee  v, 
U.  S.  18  Wall.  541. 

^  See  Somervell  v.  Hunt,  3  Har.  & 
M.  113;  Freno  v.  Freno,  1  Weekly 
Notes  of  Cases,  165 ;  Henkle  v. 
Smith,  21  111.  238;  Stringer  r.  Davis, 
35  Cal.  25;  Mann  v.  Russell,  11  111. 
586  ;  Lee  v.  Flemingsburg,  7  Dana, 
28;  Dennis  v.  Van  Vay,  28  N.  J.  L. 
158;  Berry  y.  Mathewes,   7  Ga.  457. 

2  Sweigart  v.  Lowmarter,  14  Serg. 
&  R.  200. 

^  See  Ring  v.  Huntington,  1  Mill 
(S.  C),  162. 

*  Fosgate  v.  Herkimer  Man.  Co.  9 
Barb.  287. 


CHAP.  IX.] 


PICTURES  AND  PHOTOGRAPHS. 


[§  676. 


a  party  knowledge  of  a  newspaper  notice,  to  show  that  the  news- 
paper was  circulated  in  the  neighborhood  of  the  party's  Knowledge 
residence. 1  But  it  will  be  enough,  to  enable  the  news-  papeTno- 
paper  to  go  to  the  jury,  to  prove  that  it  was  taken  pro^'^d^ln* 
by  the  party  on  whom  it  is  sought  to  prove  notice,^  or  fercntialiy. 
that  he  attended  habitually  a  reading  room  where  it  was,  or  was 
shown  in  some  other  way  to  have  been  familiar  with  the  paper  ;^ 
or  that  the  newspaper  is  one  with  which  it  is  his  duty  to  be 
familiar,  as  are  underwriters  with  Lloyd's  Shipping  List.^ 


IX.   PICTURES  AND  PHOTOGRAPHS;  PLANS  AND  DIAGRAMS. 

§  676.  Of  persons  who  are  dead,  or  cannot  for  other  reasons 
be  produced  in  court,  duly  authenticated  pictures^  and   pi^jt^^gg 
photographs  ^  are  admissible  in  questions  of  pedigree   and  piioto- 
and  identity ;  though  they  are  open  to  parol  explana-   are  adinis- 
tion.     Photographs  of  places  may,  in  like  manner,  be 


1  Norwich  Nav.  Co.  v.  Theobald, 
M.  &  M.  153  ;  Kellogg  v.  French,  15 
Gray,  354.     Supra,  §  673. 

2  Godfrey  v.  Macaulay,  Pea.  R.  155, 
n.;  Jenkins  v.  Blizard,  1  Stark.  R. 
419;  Hart  v.  Alexander,  2  M.  &  W. 
484;  Leeson  v.  Holt,  1  Stark.  R. 
186. 

8  Ibid. 

*  Mackintosh  v.  Marshall,  11  M.  & 
W.  116. 

*  Camoys  Peerage  case,  6  CI.  &  F. 
801. 

6  Whart.  &  St.  Med.  Jur.  ii.  §  123; 
Ruloff  V.  People,  45  N.  Y.  215;  S.  C. 
5  Lansing,  261;  Udderzook's  case,  76 
Penn.  St.  340 ;  S.  C.  Whart.  on  Hom- 
icide, Appendix;  Shaible  v.  Ins.  Co. 
9  Phil.  R.  136  ;  aff.  1  Weekly  Notes 
of  Cases,  369 ;  Luke  v.  Calhoun  Co. 
52  Ala.  115. 

See  Beers  v.  Jackman,  103  Mass. 
192,  ruling  that  evidence  of  similarity 
was  inadmissible  in  bastardy  suits. 

As  to  the  secondary  character  of 
photographs,  see  supra,  §  91. 

The  admission  of  photographs,  as 
a  means  of  identification,  is  thus  dis- 

VOL.    I.  41 


cussed  by  a  learned  judge  of  the  su- 
preme court  of  Pennsylvania  :  — 

"  All  the  bills  of  exceptions,  except 
one,  relate  to  this  question  of  identity, 
the  most  material  being  those  relating 
to  the  use  of  a  photograph  of  Goss. 
This  photograph,  taken  in  Baltimore, 
on  the  same  plate  with  a  gentleman 
named  Langley,  was  clearly  proved 
by  him,  and  also  by  the  artist  who 
took  it.  Many  objections  were  made 
to  the  use  of  this  photograph,  the 
chief  being  to  the  admission  of  it  to 
identify  Wilson  as  Goss;  the  prisoner's 
counsel  regarding  this  use  of  it  as  cer- 
tainly incompetent.  That  a  portrait 
or  a  miniature,  painted  from  life,  and 
proved  to  resemble  the  person,  may 
be  used  to  identify  him,  cannot  Ihj 
doubted,  though,  like  all  other  evi- 
dences of  identity,  it  is  open  to  dis- 
proof or  doubt,  and  must  be  deter- 
mined by  the  jury.  There  seems  to 
be  no  reason  why  a  photograph, 
proved  to  be  taken  from  life,  and  to 
resemble  the  person  photographed, 
shoulil  not  fill  the  same  measure  of 
evidence.     It  is  true,  the  photographs 

641 


§  G76.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


admitted  when  relevant ;  ^  though  the  impression  they  give  of 
depths  and  distances  may  require  to  be  corrected  aliunde  by 
measurement.^  Such  photographs,  also,  must  be  verified  by 
proof  that  they  are  true  representations  before  they  can  be  ad- 
mitted by  the  court.^  Photographs  of  handwriting  are  in  like 
manner  admissible ;  *  though  in  cases  involving  delicate  ques- 
tions of  identity  of  hands,  a  photograph  should  not  be  relied  on 
without  investigating  the  refractive  power  of  the  lens,  the  angle 
at  which  the  original  was  inclined  to  the  sensitive  plane,  the  ac- 
curacy of  the  focussing,  and  the  skill  of  the  operator.^     Engrav- 


we  sec  are  not  the  original  likenesses; 
their  lines  are  not  traced  by  the  hand 
of  the  artist,  nor  can  the  artist  be 
called  to  testify  that  he  faithfully 
limned  the  portrait.  They  are  but 
paper  copies  taken  from  the  original 
plate,  called  the  negative,  made  sensi- 
tive by  chemicals,  and  printed  by  the 
sunlight  through  the  camera.  It  is 
the  result  of  art,  guided  by  certain 
principles  of  science. 

"  In  the  case  before  us,  such  a  pho- 
tograph of  the  man  Goss  was  pre- 
sented to  a  witness  who  had  never  seen 
him,  so  far  as  he  knew,  but  had  seen 
a  man  known  as  Wilson.  The  pur- 
pose was  to  show  that  Goss  and  Wil- 
son were  one  and  the  same  person. 
It  is  evident  that  the  competency  of 
the  evidence  in  such  a  case  depends 
on  the  reliability  of  the  photograph  as 
a  work  of  art,  and  this,  in  the  case 
before  us,  in  which  no  proof  was  made, 
by  experts,  of  this  reliability,  must 
depend  upon  the  judicial  cognizance 
we  may  take  of  photographs,  as  an 
established  means  of  producing  a  cor- 
rect likeness.  The  Daguerrean  proc- 
ess was  first  given  to  the  world  in 
1839.  It  was  soon  followed  by  pho- 
tography, of  which  we  have  had  near- 
ly a  generation's  experience.  It  has 
become  a  customary  and  a  common 
mode  of  taking  and  preserving  views, 
as  well  as  the  likenesses  of  persons, 
and  has  obtained  universal  assent  to 

642 


the  correctness  of  its  delineations. 
We  know  that  its  principles  are  de- 
rived from  science;  that  the  images 
on  the  plate,  made  by  the  rays  of  light 
through  the  camera,  are  dependent 
on  the  same  general  laws  which  pro- 
duce the  images  of  outward  forms 
upon  the  retina  through  the  lenses  of 
the  eye.  The  process  has  become  one 
in  general  use,  so  common  that  we 
cannot  refuse  to  take  judicial  cogni- 
zance of  it  as  a  proper  means  of  pro- 
ducing correct  likenesses."  Agnew, 
C.  J.,  Udderzook  v.  Commonwealth, 
76  Penn.  St.  352,  353. 

^  Cozzens  v.  Higgins,  1  Abb.  (N. 
Y.)  App.  451  ;  Church  v.  Milwaukee, 
31  Wise.  512. 

2  Tichborne  Trial,  Cockburn,  C.  J., 
Charge,  ii.  640. 

8  Marcy  v.  Barnes,  16  Gray,  161  ; 
HoUenbeck  v.  Rowley,  8  Allen,  473; 
Com.  V.  Coe,  115  Mass.  481;  Walker 
V.  Curtis,  116  Mass.  98;  Blair  v.  Pel- 
ham,  118  Mass.  420;  Ruloff  v.  People, 
45  N.  Y.  215. 

*  Marcy  v.  Barnes,  16  Gray,  161. 
Infra,  §  720. 

5  Taylor  Will  case,  10  Abb.  N.  Y. 
Pr.  N.  S.  300;  Tome  v.  R.  R.  39  Md. 
36,  quoted  infra,  §  716.  See  Daly  v. 
Maguire,  6  Blatch.  137. 

In  Foster's  Will,  Sup.  Ct.  of  Mich- 
igan, Ap.  1876  (8  Am.  Law  Times 
Rep.  412),  Campbell,  J.,  said  :  — 

"  If  the  court  had  permitted  photo- 


CHAP.  IX.] 


PHOTOGRAPHS   AND   PLANS. 


[§  676. 


ings  of  scientific  results  may,  it  seems,  be  admitted  to  illustrate 
an  argument.^  But  as  to  all  forms  of  pictorial  or  photographic 
representation,  whether  the  representation  is  correct  must  be  de- 
termined by  the  court  before  it  can  be  received  ;  and  the  ruling 
of  the  court  below  in  this  respect  is  not,  it  is  said  in  Massachu- 
setts, open  to  exception  in  error.^ 


graphic  copies  of  the  will  to  be  given 
to  the  jury,  with  such  precautions  as 
to  secure  their  identity  and  correct- 
ness, it  might  not,  perhaps,  have  been 
error.  Nevertheless,  it  is  not  always 
true  that  every  photographic  copy 
would  be  safe  on  any  inquiry  requiring 
minute  accuracy.  Few  copies  can  be 
so  satisfactory  as  a  good  photograph. 
But  all  artists  are  not  competent  to 
make  such  pictures  on  a  large  scale, 
and  all  photographs  are  not  absolutely 
faithful  resemblances.  It  is  quite  pos- 
sible to  tamper  with  them,  and  an 
impression,  which  is  at  all  blurred, 
would  be  very  apt  to  mislead  on  ques- 
tions of  handwriting,  where  forgery  is 
claimed.  Whether  it  would  or  would 
not  be  permissible  to  allow  such  docu- 
ments to  be  used,  their  use  can  never 
be  compulsory.  The  original,  and  not 
the  copy,  is  what  the  jury  must  act 
upon,  and  no  device  can  properly  be 
allowed  to  supersede  it.  Copies  of  any 
kind  are  merely  secondary  evidence, 
and,  in  this  case,  they  were  intended 
to  be  used  as  equivalent  to  primary 
evidence  in  determining  the  genuine- 
ness of  the  primary  document." 

1  Ordway  v.  Ilaynes,  50  N.  II.  159. 

^  "  A  plan  or  picture,  whether 
made  by  hand  of  man,  or  by  photog- 
raphy, is  admissible  in  evidence,  if 
verified  by  proof  that  it  is  a  true  rep- 
resentation of  the  subject,  to  assist 
the  jury  in  understanding  the  case. 
Marcy  v.  Barnes,  IG  Gray,  ICl;  Hol- 
lenbeck  i;.  Rowley,  8  Allen,  4  73;  Coz- 
zens  V.  Iliggins,  1  Abbott  N.  Y.  451; 
Ruloff  V.  People,  45  N.  Y.  213;  Ud- 
derzook  v.   Commonwealth,  76  Penn. 


St.  340  ;  Church  v.  Milwaukee,  31 
Wise.  512.  ■  Whether  it  is  sufficiently 
verified  is  a  preliminary  question  of 
fact,  to  be  decided  by  the  judge  pre- 
siding at  the  trial,  and  not  open  to 
exception.  Commonwealth  v.  Coe,  115 
Mass.  481,  505."  Walker  v.  Curtis, 
116  Mass.  98. 

In  illustration  of  the  use  of  pho- 
tography, in  cqnnection  with  the  pro- 
duction of  evidence,  the  following 
cases,  for  which  I  am  indebted  to  an 
eminent  scientist,  will  be  of  value. 

"  In  the  case  of  the  Rumford  Ciiem- 
ical  Works  v.  Hecker,  11  Blatch.  552, 
the  question  was  raised  as  to  the  rela- 
tive porosity  of  bread  made  with  yeast 
in  the  usual  manner,  and  that  prepared 
with  the  baking  powder  of  the  com- 
plainants. Evidence  was  introduced 
by  defendants  as  follows  :  President 
Henry  Morton,  of  the  Stevens  Inst, 
of  Technology,  Hobokcn,  N.  J.,  who 
organized  the  photographic  observa- 
tions of  the  eclipse  of  7th  August, 
1869,  under  the  Nautical  Almanac 
Office,  and  otherwise  an  e-xpert  in 
pbotography,  was  produced,  and  de- 
posed to  having  prepared  sections  of 
both  varieties  of  l)read  of  exactly  ecjual 
thickness,  and  to  having  maile  micro- 
scopic or  highly  enlarged  photographs 
of  the  same,  under  identical  condi- 
tions. The  original  negatives  of  these, 
and  also  positive  prints  from  the  same, 
were  received  and  filed  as  exhil)it8. 

"  In  the  case  of  II.  I).  Cone  r.  Porter 
&  Bauibridge,  a  (jnestion  l)eing  raised 
as  to  the  identity  in  cliaracter  in  cm- 
bossed  lines  on  writing  paper  claime<l 
to  infringe    a   [)atont   for   such   lines 

643 


677.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


§  677. 

And  so  of 
plans  and 
diagrams. 


Secondary  evidence  may  be  received  of  buildings, 
monuments,  and  other  objects  which  cannot  be  brought 
into  court.     For  this  purpose,  authenticated  plans  or 


when  made  of  an  '  ogee  '  form,  the 
same  expert  above  named  was  pro- 
duced, and  deposed  to  having  prepared 
slips  of  each  variety  of  paper  under 
consideration,  attaching  the  same  side 
by  side  in  the  four  positions,  which 
would  give  every  possible  variety  to 
the  arrangement  of  light  and  shade  in 
the  experiment,  and  then  making  pho- 
tographs of  the  entire  sheet,  or  card, 
with  a  very  oblique  illumination. 

*'  By  this  means  the  variations  of 
surface  in  the  embossed  lines  was 
strongly  marked  by  light  and  shade, 
and  the  identity  or  difference  of  the 
various  samples  clearly  shown. 

"  In  the  case  of  Funcke  v.  N.  York 
Mutual  Life  Insurance  Co.,  in  1876, 
in  the  superior  court  of  New  York 
city,  a  question  arose  as  to  the  altera- 
tion of  a  check  from  $100  to  Si, 500. 
The  alteration  had  been  confessed  by 
a  notorious  forger,  who  had  been  em- 
ployed to  make  it,  but  who  was  under 
sentence  for  another  offence.  Photo- 
graphs were  exhibited,  showing  de- 
cided traces  of  the  original  writing,  es- 
pecially of  the  word  "  One,"  under  the 
newly  written  "  Fifteen."  It  was  ob- 
jected that  these  traces  of  the  orig- 
inal writing,  which  were  not  visible 
on  the  check  itself,  were  also  invisible 
on  certain  of  the  photographs.  It  has 
been  suggested  to  us  by  President 
Morton,  that  this  was  probably  due  to 
a  too  long  exposure  of  the  negatives 
not  showing  the  traces.  The  ink, 
which  had  been  obliterated  by  the  use 
of  dilute  sulphuric  acid  and  hypochlo- 
ride  of  soda  (Labaraque's  solution), 
had  left  only  a  very  faint  trace  of  oxide 
of  iron,  which,  by  reason  of  its  yellow 
color,  would  have  a  special  absorbing 
power  for  the  actinic  or  photographic 

644 


rays,  but  yet  even  in  this  regard  the 
difference  between  this  remnant  of  the 
ink  and  the  white  paper  was  very 
slight,  and  if  the  exposure  was  at  all 
too  long,  even  the  yellow  traces  re- 
flected light  enough  to  render  the  neg- 
ative film  opaque.  It  was  therefore 
necessary  that  just  time  enough  should 
be  given  to  allow  the  white  paper  to 
produce  its  effect,  when  the  slightly 
yellow  parts  would  be  distinguishable 
by  their  inferior  action." 

The  following  is  from  the  Albany 
Law  Journal  of  June  10,  1876  :  — 

"  A  novel  application  of  the  art  of 
photography  was  made  in  a  cause  on 
trial  before  Mr.  Justice  Dykman,  in 
the  supreme  court  circuit.  New  York, 
on  Friday,  June  2,  1876.  The  ques- 
tion at  issue  was,  whether  the  certifi- 
cation of  a  check,  purporting  to  have 
been  made  by  the  teller  of  the  bank 
on  which  it  was  drawn,  was  genuine, 
or  a  forgery.  The  teller  swore  that  it 
was  not  his  certificate,  and  several  ex- 
perts pronounced  the  signature  a  for- 
gery; while  other  experts,  called  by 
the  holder  of  the  check,  were  equally 
positive  that  the  signature  was  gen- 
uine. Thereupon  the  court  room  was 
darkened,  and  '  Prof.  Combs,'  with  the 
aid  of  a  calcium  light  magic  lantern, 
threw  an  image,  from  a  photographic 
negative,  of  the  check  in  question, 
upon  the  wall,  to  show  that  the  writ- 
ing was  fi'ee  and  flowing,  and  not  the 
laboi-ed  and  retouched  signature,  which 
is  the  usual  accompaniment  of  forge- 
ries, and  which  some  of  the  experts 
insisted  appeared  in  this  case.  This 
exhibit  seems  to  have  had  the  desired 
effect,  as  the  jury  found  that  the  sig- 
nature was  genuine."  See  Infra,  § 
720. 


CHAP.  IX.]  SHOP-BOOKS.  [§  678. 

diagrams  of  the  locus  in  quo  are  admissible  ;  ^  and  may  go  to  the 
jury  .2 

X.   SHOP-BOOKS. 

§  678.  By  the  Roman  law,  as  is  elsewhere  noticed,  the  book 
of  original  entries  kept  by  a  shop-keeper,  when  verified   „, 
by  his  oath,  is  primd  facie  evidence  of  the  sales  or   books  ad- 

1  .  ,.  -,        .  .  .  rni  •       niissible 

other  immediate  business  transactions  it  notes.  This  when  veri- 
rule  now  exists  in  those  European  states  in  which  the  oath  of 
Roman  law  is  in  force.^  In  England,  a  statute  passed  P^"^'^" 
in  1609  recognized  a  similar  admissibility  of  tradesmen's  books ; 
but  this  statute  appears  never  to  have  Ijeen  acted  on  by  the  courts, 
though  in  1863  it  was  "revivified  and  rendered  perpetual."* 
Independent,  however,  of  these  statutes,  shop-books,  we  are  told, 
have  been  admitted  as  primd  facie  evidence  in  cases  "  where 
accounts  have  been  required  to  be  taken,  and  vouchers  have 
been  lost."  ^  By  the  Chancery  Amendment  Act,  courts  of  equity 
are  empowered  to  direct  that  in  taking  accounts,  the  book  in 
which  the  accounts  required  to  be  taken  have  been  kept  shall  be 
primd  facie  proof. *^  In  the  United  States,  a  tradesman's  book 
of  original  entries  is,  in  most  jurisdictions,  received  in  evidence 
as  primd  facie  proof,  when  supported  by  the  tradesman's  oath.'^ 

1  Jones  V.  Tarleton,  9  M.  &  W.  84;  8  gee  WLarton  Confl.  of  Laws, 
R.  V.  Fursey,  6  C.  &  P.  84  ;  Wood  v.     §§  753-56. 

Willard,  36  Vt.  81  ;  Blair  v.  PelLam,  <  Taylor's  Evidence,  §  641. 

118  Mass.  420  ;  Stuart  v.   Binsse,  10  6  Lodge  v.  Prichard,  3  De  Gex,  M. 

Bosw.    (N.  Y.)  436  ;    Vilas  v.   Key-  &  G.  908. 

nolds,  6  Wise.  214;  Shook  v.  Pate,  50  «  Taylor's  Ev.  §  641,  B. 

Ala.  91.     See  several  instances  given  '  Prince   v.   Smith,   4    ^lass.   455  ; 

in  Bemis's  Webster  Trial.  Ball  v.  Gates,  12  Mete.  491  ;  Swift  v. 

2  "  The  submission  to  the  jury  of  Pierce,  13  Allen,  13G  ;  Case  v.  Potter, 
the  plan,  unaccompanied  by  the  tes-  8  Johns.  R.  211;  Linnell  r.  Suthcr- 
timony  of  the  surveyor  Avho  made  it,  land,  11  Wend.  568;  Poultncy  r.  Ross, 
and  of  the  complainant,  '  not  as  an  ac-  1  Dall.  239;  Linn  v.  Na^lee,  4  Whart. 
curate  plan  of  the  premises,'  but  as  R.  92;  Funk  v.  Ely,  45  Ponn.St.444; 
'  showing  generally  the  situation  and  Fitzgibbon  i'.  Kinney,  3  ILirr.  (Del.) 
area  of  the  premises  flowed,'  was  with-  317;  ^fyer  i-.  (irafilin,  31  Md.  350;  Ken- 
in  the  discretion  of  the  presiding  odi-  v.  Love,  1  Wash.  (Va.)  172;  James 
cer.  IloUenbeck  v.  Rowley,  8  Allen,  v.  Richmond,  5  Ohio,  338 ;  Karr  v. 
473;  Clapp  v.  Norton,  106  Mass.  33;  Stivers,  34  Iowa,  123  ;  Winne  v.  Nick- 
Commonwealth  v.  Holliston,  107ALass.  crson,  1  Wise.  1  ;  Sherwood  v.  Sissa, 
232."  Gray,  J.,  Paine  v.  Woods,  108  5  Nov.  349.  In  Michigan  by  statute. 
Mass.  168.  Morse  v.  Congdon,  3  Mich.  549.     In 

645 


§  679.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

Even  a  marshal's  book  of  private  original  entries  has  been  held 
admissible  to  prove  his  sales.^  In  North  Carolina,  under  the  stat- 
ute, book  accounts,  supported  by  partj^'s  oath,  are  only  proof  of 
small  debts,  when  delivery  is  proved  aliunde?  In  Maine,  such 
books,  in  the  handwriting  of  the  party  himself,  are  only  admis- 
sible to  the  extent  of  forty  shillings,^  or  after  the  death  of  the 
party,  on  proof  of  his  handwriting.* 

§  679.  It  must  at  the  same  time  be  kept  in  mind  that  by  the 
Alteration  statutes  enabling  parties  to  be  witnesses,  books  of  orig- 
statute'en'^  inal  entries  have  lost  the  peculiar  significance  formerly 
biingpar-     attached  to  them.     Under  such  statutes  they  are  not 

ties  to  be  _  _  _      _  '' 

witnesses,  simply  exceptionally  admissible,  by  statute  or  custom, 
but  are  generally  admissible,  under  the  rule  that  a  witness  may 
refresh  his  memory  by  proper  memoranda.^  "  Questions  in  rela- 
tion to  book  entries  as  evidence,"  as  is  well  said  by  the  supreme 
court  of  Pennsylvania  in  1875,^  *'  since  the  Act  of  1869  making 
the  parties  witnesses,  stand  upon  a  different  footing  than  that  on 
which  they  stood  before.  Then  the  book  itself  was  the  evidence, 
and  the  oath  of  the  party  was  merely  supplementary.  Now  the 
party  himself  is  a  competent  witness,  and  may  prove  his  own 
claim  as  a  stranger  would  have  done  before  the  Act  of  1869« 
That  the  facts  contained  in  the  book,  either  of  charge  or  dis- 

lowa  by  statute.   Anderson  i;.  Ames,  6  Mo.   310 ;    Burr    v.    Byers,    10    Ark. 

Iowa,  486;  Foster  v.  Sinkler,   1  Bay  398. 

S.  C.  40;  Herlock  v.  Riser,  1  McCord,  ^  Linthicum  v.  Remington,  5  Cranch 

481 ;  Thompson  v.  Porter,  4  Strob.  Eq.  C.  C.  546. 

58;    Landis  v.  Turner,  14  Cal.   573;  ^  Alexander  r.  Smoot,  13  Ired.  461. 

Bower  v.  Smith,  8  Ga.  74.   As  to  stat-  ^  Dunn  v.  Whitney,  1  Fairf.  9;  Kel- 

ute,  see  Ganahl  v.  Shore,  24  Ga.  17.  ton  v.  Hill,  58  Me.  114. 

In  Florida  by  statute.   Hooker  v.  John-  ■*  Leighton  v.  Manson,  14  Me.  208; 

son,  6  Fla.  730  ;  Moody  v.  Roberts,  41  Dow  v.  Sawyer,  29  Me.  117.     See,  for 

Miss.    74;  Johnson  y.  Price,  3  Head,  a  more  extended  rule,  Codman  r.  Cald- 

549;  Irwin  v.  Jordan,  7  Humph.  167;  well,  31  Me.   560;  Lord  v.  Moore,  37 

Forsee  r.  Matlock,  7  Heisk.  421 ;  Ward  Me.  208.     As  to  limit  in  New  Hamp- 

V.  Wheeler,  18  Tex.  249  ;    Taylor  v.  shire,  see  Dodge  v.  Morse,  3  N.  H. 

Coleman,  20  Tex.   772;    Burleson   v.  232  ;  Bassett  v.  Spofford,   11   N.  H. 

Goodman,  32  Tex.  229.     Contra,  Ed-  167  ;  Rich  v.  Eldredge,  42  N.  H.  153. 

wards  v.  Nichols,  3  Day,  16;  Nolleyi;.  ^  See  this  rule  discussed   supra,  § 

Holmes,  3  Ala.  642  ;    Scott  v.  Coxe,  516. 

20   Ala.   294;    Godbold   v.   Blair,    27  6  Nichols  r.  Haynes,  78  Penn.  St. 

Ala.  592;   Richardson  v.  Dorniah,  28  174.     See    Barnet    v.    Steinbach,     1 

Ala.  679.   Otherwise  when  allowed  by  Weekly  Notes,  335;  Henry  v.  Martin, 

Code.      Hissrick    v.   McPherson,    20  1  Weekly  Notes,  277. 

646 


CHAP.  IX.] 


SHOP-BOOKS. 


[§  681. 


charge,  of  cash  or  goods,  or  whatever  else  is  in  his  personal 
knowledge,  might  be  proved  by  a  stranger,  no  one  doubts.  A 
clerk,  for  instance,  could  prove  the  account,  including  cash  items, 
from  his  own  knowledge,  and  might  use  the  book  to  refresh  his 
memory.  The  party  now  stands,  by  force  of  the  law,  on  the 
same  plane  of  competency  as  the  stranger  stood  upon,  and  there- 
fore may  make  the  same  proof.  As  a  stranger  could,  he  may 
also  refer  to  entries  made  at  the  time  of  the  transaction  in  cor- 
roboration of  his  testimony." 

5  680.  Such  entries  are  used  to  refresh  the  memory   Notneces- 
of  the  party  swearing  to  them,  and  it  is  not  necessary,    witness 
therefore,  that  he  should  have  an  independent  recollec-   have  in- 
tion  of  the  facts  they  narrate.^  ?eXiiet"' 

§  681.  The  charge  proved  must  be  in  connection  with   ^'°°- 
the  party's  daily  business,  and  not  an  insulated  inde-   Charge 
pendent  item.^     Thus  a  tradesman's  book  of  original   jn  party's 
entries  is  not  admissible  to  prove  an  item  for  money   ^"*'°^ss. 
loaned.^      In  South  Carolina,  it  has   been  held   that  the  stat- 
ute authorizing  a  party  to  make  proof  by  swearing  to  his  books 
of   original    entry  does  not  apply  to  a  schoolmaster,*  nor  to  a 
planter,^  nor  to  a  scrivener,''  nor  to  the  keeper  of  a  billiard-table.'^ 


1  Supra,  §  518. 

"  In  Merrill  v.  The  Ithaca  &  Owega 
Railroad  Company,  IG  Wendell,  58G, 
it  was  held  that  when  original  entries 
are  produced,  and  the  person  who 
made  them,  and  knew  them  at  the 
time  to  be  true,  testified  that  he  had 
made  the  entries,  and  that  he  be- 
lieved them  to  be  true,  although  at 
the  time  of  testifying  he  had  no  recol- 
lection of  the  facts  set  forth  in  the 
entries,  such  evidence  is  admissible 
as  prima  facie  evidence  for  the  jury. 
In  this  case,  Mr.  Justice  Cowan,  who 
delivered  the  opinion  of  the  court,  ex- 
amined most  of  the  authorities,  ICng- 
lish  and  American,  on  the  subject. 
The  same  doctrine  is  also  sustained 
by  the  case  of  Guy  c.  Mead,  22  N. 
y.  4G5."  Nelson,  J.,  Insurance  Com- 
pany V.  Weide,  9  Wall.  G77,  G80,  G81. 
S.  P.,  Wolcott  V.  Heath,  78  111.  433. 


2  Winson  i'.  Dillaway,  4  Mete.  221; 
Corning  v.  Ashley,  4  Donio,  354; 
Curren  v.  Ci'awford,  4  Serg.  &  R.  6; 
Shoemaker  v.  Kellog,  11  Penn.  St. 
310;  Karr  v.  Stivers,  34  Iowa,  123; 
Lynch  v.  McHugo,  1  Bay,  S.  C. 
33. 

8  Wilson  V.  Wilson,  1  Ilalst.  95; 
Carman  v.  Dunham,  6  ILUst.  189; 
Ducoign  V.  Schreppel,  1  Yeates,  347; 
Veiths  V.  Haiige,  8  Iowa,  1G3;  Cole 
V.  Dial,  8  Tex.  34  7.  As  to  limit  in 
Massachusetts  of  S6.GG,  in  charges  of 
cash,  see  Union  liank  i'.  Knapp,  8 
Pick.  109;  Davis  v.  Sanford,  9  Al- 
len, 216. 

*  Pelzcr  V.  Cranston,  2  McCord, 
328. 

^  Gcter  V.  Comm.  1  Bay,  354. 

0  Watson  r.  Bostwick.  2  Bay,  312. 

''  Boyd  V.  Ladson,  4  McCord,  7G. 

647 


§  682.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

So  it  has  been  ruled  in  Tennessee,  that  where  the  services  in  con- 
troversy were  such  as  to  raise  no  presumption  tliat  compensation 
was  to  be  rendered  therefor,  —  consisting  in  attention  to  an  aged 
father  in  his  last  sickness,  —  it  was  not  competent  for  the  plain- 
tiff to  show  by  his  own  oath  that  the  services  were  performed  un- 
der a  promise  of  the  deceased  that  they  should  be  well  paid  for.^ 
§  682.  The  book  proved  must  be  one  of  original  entry ;  a 
Book  must  ledger,  or  other  book  into  which  such  entries  are  tran- 
originai°^  scribed,  is  inadmissible. 2  That  the  book  is  in  ledger 
entry.  form  is  no  objection.^     It  has  been  held,  however,  that 

the  fact  that  entries  are  first  made  on  a  slate,  and  then  trans- 
ferred to  the  book  offered,  does  not  exclude  the  book,  when  the 
slate  entries  are  not  preserved,  and  the  transfer  is  immediate.* 
But  where  the  slate  entries  are  relied  on  by  the  party  as  in  any 
sense  original  entries,  then  the  book  assumes  a  secondary  char- 
acter, and  is  inadmissible.^  The  distinction  is  this  :  memoranda 
made  in  rough  on  a  slate,  or  on  a  mere  temporary  note-book,  of 
which  the  object  is  merely  to  assist  the  memory  until  the  entries 
are  made  in  a  day-book,  are  not  books  of  original  entry,  and 
need  not  be  produced ;  nor  do  they  make  the  day-book  secondary 
evidence.  Where,  however,  such  memoranda  are  made  as  per- 
manent records  of  the  sale,  then  they  constitute  a  book  of  orig- 
inal entries,  and  must  be  produced.^  The  day-book,  or  blotter, 
as  it  is  sometimes  called,  on  the  other  hand,  and  into  which  such 

1  Forsee  v.  Matlock,  7  Heisk.  421.  193;  Lawhorn  v.  Carter,  11   Bush,  7; 

2  Dwinel    v.    Pottle,    31   Me.   167;  Neville  u.  Northcutt,  7  Coldw.  294. 
Godfreys.  Codman,  32  Me.  162;  Fax-         3  Wells  v.  Hatch,  43   N.   H.    246; 
on  u.  Mollis,  13  Mass.  427;  Morris   v.  Rodman  r.  Hoops,  1  Dall.  85;  Thom- 
Briggs,  3  Cush.  342;  Whitney  v.  Saw-  son  v.  Hopper,  1  W.  &  S.  468;  Hoover 
yer,  11   Gray,  242;  Stetson  v.  Wol-  v.  Gehr,  62  Penn.  St.  138. 

cott,  15  Gray,  545;  Bentley  u.  Ward,  *  Hall    v.     Glidden,    39   Me.  445; 

116  Mass.  333;  Case  v.  Potter,  8  Johns.  Pillsbury  v.  Locke,  33  N.  H.  96  ;  Fax- 

K.  211;    Burke   v.    Wolfe,  38  N.  Y.  on  v.  Hollis,  13  Mass.   427;  Hartley 

Sup.    Ct.    263;    Stroud  v.    Tilton,  4  v.  Brookes,  6  Whart.    R.  180;  Ewart 

Abb.   (N.  Y.)   App.  324;  Kotwitz  v.  v.  Morrell,  5  Harr.  (Del.)  126;  Landis 

Wright,  37  Tex.  82  ;  Wall  v.  Dovey,  v.  Turner,  14  Cal.  573. 

60  Penn.  St.  212;  McCormick  v.  Els-  ^  Kessler  v.  McConachy,   1  Rawle, 

ton,  16  111.   204;  Karr  v.  Stivers,  34  435;  Forsythe  v.  Norcross,  5  Watts, 

Iowa,  123;  Marsh  v.   Case,  30  Wise.  432.     See  Davison  v.  Powell,  16  How. 

531;  Lynch  v.  Petrie,  1  Nott  &  McC.  (N.  Y.)  467. 

130;  Toomer  v.  Gadsden,  4  Strobh.  ^  Ibid.;  Breinigr.Meitzler,  23  Penn. 

St.  156. 

648 


CHAP.  IX.] 


SHOP-BOOKS. 


[§  683. 


memoranda  are  entered,  is  virtually  the  book  of  original  entries, 
and  must  be  produced,  or  its  loss  accounted  for.^  Entries  in 
books  kept  for  other  purposes  have  been  held  inadmissible.^ 
The  entries  must  be  in  a  book  used  continuously  for  the  pur- 
pose ;2  but  a  book  of  original  entries  is  not  vitiated  by  the  fact 
that  it  contains  entries  not  original.^  In  case  of  the  loss  of 
the  book  of  original  entries,  a  transcript,  or  the  ledger,  has  been 
received.^ 

§  683.  Freshness  of  entering  is  essential ;  the  entries  must  be 
made  as  soon  after  the  transaction  as  is  consistent  with   r,.,  „  „  .  . 

ine  entries 
the  due  course  of  business,  and  in  the  handwriting  of   ™ust  have 

the  party  by  whom  they  are  proved.     Each  item  must   tempora- 

be  severally  entered  when  this  is  conformable  to  the 

nature  of  the  transaction.^     If  the  entry  is  made  before  tlie  sale 

or  delivery  is  complete,  it  cannot  be  received.^     But  an  employer 

may  charge  for  his  employee's  services  by  the  job  ;  ^  and  it  lias 

been  held  that'  when  an  employee  is  in  constant  employment  for 

a  year,  an  entry  once  a  week  is  sufficient.^     When  made  by  a 

salesman,  and  reported  to  the  principal,  who  enters  them,  his  en- 


1  Breinig  v.  Meitzler,  23  Penn.  St. 
156. 

2  Rogers  v.  Old,  5  Scrg.  &  R.  404; 
Smith  V.  Lane,  12  Serg.  &  R.  80. 

8  Kibbe  V.  Bancroft,  7  7  111.  18. 

4  Ives  V.  Nlles,  5  Watts,  323. 

5  Breinig  v.  Meitzler,  23  Penn.  St. 
156;  Holmes  r.  Harden,  12  Pick.  169; 
Caulfield  V.  Sanders,  17  Cal.  569. 


Tex.  418;  Taylor  v.  Coleman,  20  Tex. 
7  72;  Hooker  v.  Johnson,  6  Fla.  730. 
Sec,  for  a  liberal  rule  as  to  a  physi- 
cian's charges,  Clarke  v.  Smith,  46 
Barb.  30;  Bay  v.  Cook,  22  N.  J.  L. 
343.  "  Three  months'  service,"  in  a 
single  entry,  do  not  form  an  admis- 
sible charge.  Henshaw  i'.  D.avis,  5 
Cush.    145.     In    Bolton's    Appeal,    3 


6  Lord  V.  Moore,  37  Me.  208;  Luce  Grant  (Penn.),  204;  and  Koch  v.  IIow- 

V.  Doane,   38  Me.  478;  Cummings   v.  ell,  6   Watts   &   S.  350,  it  was  ruled 

Nichols,  13  N.  H.  420;  Earle  v.  Saw-  that  a  paper-hanger's  book  of  original 

yer,  6   Cush.  142;  Keith  v.  Kibbe,  10  entries  could    be   admitted  when    the 

Cush.  35;  Gorman  r.  IMontgomery,   1  entry  was  ma<le  as  soon  as  the  (juan- 

Allen,  416;  Dexter  v.  Booth,  2  Allen,  tity  of  paper  was  tletermiiied  from  its 

559;  Com.  v.  Goodwin,  14   Gray,  55;  use,   and   the    amount   of    work    was 


Bentlcy  v.  Ward,  116  Mass.  333; 
Swing  V.  Sparks,  2  Halst.  59;  Vance 
V.  Caldwell,  1  Yeates,  321 ;  Jones  v. 
Long,  3  Watts,  325  ;  Lonergan  v. 
Whitehead,  10  Watts,  249;  Venning 
V.  Hacker,  2  Hill  S.  C.  584 ;  Bower 
V.  Smith,  8  Ga.  74;  Ilolliday  v.  Butt, 
40  Ala.  178;  Lynch  v.  Petrie,  1  Nott  & 
McC.  130;  Townsend  v.  Coleman,  18 


measured. 

''  Parker  v.  Donaldson,  2  Watts  & 
S.  9  ;  Rhceni  v.  Snodgrass,  2  Grant 
(Penn.),  379. 

*  Bolton's  Appeal,  3  Grant  (IVnn.). 
204. 

*  Yearsley's  Appeal,  48  Penn.  St. 
531. 

649 


§  684.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


tries  have  been  treated  as  original,^  and  so  when  the  goods  are 
delivered  by  one  person,  and  the  entries  made  by  another.^  But 
ordinarily  the  party  making  his  entry  must  swear  to  his  own 
writing.^  Where  a  witness  cannot  be  certain  whether  or  no  the 
entry  was  written  by  himself,  or  by  whom  it  was  written,  it  can- 
not be  used  as  evidence.* 

§  684.  The  book  offered  must  be  on  its  face  regular.  Muti- 
Book  must  l^ted  memoranda  cannot  constitute  a  book  of  original 
be  regular,  entries.  The  entry  must  be  complete  in  itself.^  Sheets 
of  paper,  however,  on  which,  when  separate,  entries  have  been 
made,  have  been  received.^  The  entries  must  be  fair,  and  free 
from  suspicious  alteration."  But  alterations  or  errors  in  one 
point,  unless   showing  fraud,  do  not   exclude   other   portions.^ 

Paper  is  not  essential  to  the  admissibility  of  book  entries,  if 
the  instrument  be  kept  for  the  especial  purpose.  Thus  a  notched 
stick,  such  being  the  usage  of  the  particular  business,  has  been 


1  Taylor  v.  Tucker,  1   Ga.  231. 

2  Kline  v.  Gundrum,  11  Penn.  St. 
242;  Scliollenberger  v.  Seldonridge, 
49  Penn.  St,  83;  Long  v.  Conklin,  75 
111.  32. 

8  Douglass  V.  Hart,  4  Me  Cord, 
257;  Harris  v.  Caldwell,  2  McMuU. 
133;  "Wheeler  v.  Smith,  18  Wise.  651. 

It  must  be  kept  in  mind,  that  when 
the  party  is  a  general  witness,  he  may 
swear  to  the  facts,  merely  refreshing 
his  memory  by  the  entries.  Supra, 
§§  516,  526. 

*  Halsey  v.  Sinsebaugh,  15  N.  Y.  485 ; 
Gilchrist  v.  Grocers'  Co.  59  N.  Y.  495. 

The  oath,  in  this  relation,  is  indis- 
pensable. "  Except  in  the  action  of 
book  debt,  and  kindred  proceedings 
in  law  and  equity  for  the  adjustment 
of  matters  of  account,  we  believe  this 
kind  of  evidence  has  never  been  re- 
ceived without  the  clerk  or  person 
making  the  entries,  if  living  and  within 
the  jurisdiction,  was  called  to  verify 
them.  If  dead,  or  beyond  reach,  or  in- 
competent, his  testimony  is  dispensed 
with  ex  necessitate."  Phelps,  J.,  Bar- 
tholomew V.  Farwell,  41  Conn.  109. 

650 


^  Gale  V.  Norris,  2  McLean,  469; 
Richardson  v.  Emery,  23  N.  H.  220. 
See  Mathes  v.  Robinson,  8  Mete.  269; 
Hart  V.  Livingston,  29  Iowa,  217; 
Thayer  v.  Deen,  2  Hill  S.  C.  677; 
McKewn  v.  Barksdale,  2  Nott  &  M. 
17;  Cheever  v.  Brown,  30  Ga.  904; 
Hand  v.  Grant,  13  Miss.  508;  Neville 
V.  Northcut,  7  Coldw.  294. 

«  Hooper  v.  Taylor,  39  Me.  224; 
Smith  V.  Smith,  4  Harr.  (Del.)  532; 
Taylor  u.  Tucker,  1  Ga.  231;  though 
see,  contra,  Jones  v.  Jones,  21  N.  H. 
219;  Thompson  v.  McKelvey,  13  Serg. 
&  R.  126. 

"^  Supra,  §  622.  Sargeant  v.  Petti- 
bone,  1  Aik.  355;  Lloyd  v.  Lloyd,  1 
Redf.  (N.  Y.)  399;  Churchman  v. 
Smith,  6  Whart.  R.  146;  Caldwell 
V.  McDermit,  17  Cal.  464;  Blake  v. 
Lowe,  3  Desau.  S.  C.  263;  Doster  v. 
Brown,  25  Ga.  24. 

8  Gosewich  v.  Zebley,  5  Harr.  (Del.) 
124.  See  Gardner  v.  Way,  8  Gray, 
189;  Jones  v.  De  Kay,  2  Pen.  (N.  J.) 
955  ;  Rodenbough  r.  Rosebury,  24  N. 
J.  L.  491.     See  infra,  §  1264. 


CHAP.  IX.] 


SHOP-BOOKS. 


[§  687. 


received  when  verified  by  the   party's  oath.^      So  lead  pencil 
entries  maj'  be  received.^ 

§  685.  The  efBciency  of  the  charge  is  limited  to   the   imme- 
diate transaction  .3     Thus  the  consideration  of  a  prom- 

•  Charpe 

issory  note  cannot  be  thus  proved,*  nor  a  promise  to  nmst  relate 
pay  by  the  defendant;^  nor  the  nature  of  the  credit  ate  trans-'' 
given  ;  nor  that  credit  was  given  to  a  particular  person  ;  ^  '''^''°"- 
nor  can  payments  on  notes  of  hand  be  so  proved,"  nor  a  special 
contract  of  delivery.^  A  vendee's  books  are  inadmissible  to 
disprove  a  sale  and  delivery  to  him.^ 

§  686.  Books  of  oi-iginal  entry,  in  all  matters  except  that  of 
sale,  are  treated  in  some  jurisdictions  as  secondary  evi-    such 
dence,  not  to  be  received  if  better  evidence  (g.  g.  that   be'seconY- 
of   a  salesman  making  the  sale,  or   a  clerk  employed   ^^y- 
to  keep  accounts)  is  attainable.^^     The  same  rule  has  been  ap- 
plied where  the  goods  are  delivered  on  a  special  contract." 

§  687.  If  the  shop-book,  from    its  face,  appears    to    When  the 
have    been    posted   in    a    ledger,  then,  on    application    case" shows 


1  Rowland  v.  Burton,  2  Harr.  (Del.) 
288.  See  Kendall  v.  Field,  14  Me. 
30;  Davison  v.  Powell,  16  How.  (N. 
Y.)  4G7.     Supra,  §§  614-15. 

2  Hill  V.  Scott,*  12  Penn.  St.  168. 
See  supra,  §  618. 

'  Aljfcr  V.  Thompson,  1  Allen,  453; 
Batchelder  v.  Sanborn,  22  N.  H.  325; 
Putnam  v.  Goodall,  31  N.  H.  419  ;  Mc- 
Makin  v.Birkey,  7  Phil,  R.  90. 

*  Rindge  v.  Breck,  10  Cush.  43. 

6  Coffin  V.  Cross,  3  Dane  Ab.  322 ; 
Keith  V.  Kibbe,  10  Cush.  35;  Gorman 
V.  Montgomery,  1  Allen,  416;  Somers 
V.  Wright,  114  Mass.  171. 

«  Keith  V.  Kibbe,  10  Cush.  35;  Gor- 
man V.  Montgomery,  1  Allen,  416; 
Somers  v.  Wright,  114  Mass.  171; 
Bentley  t;.  Ward,  116  Mass,  333;  Field 
V.  Thompson,  119  Mass.  152,  See 
supra,  §  519;  Tenbroke  r.  Johnson, 
1  Coxe,  288;  Poultney  v.  Ross,  1  Dall. 
238;  Kerr  v.  Love,  1  Wash.  (Va.) 
172, 

'  Inslee  v.  Prall,  25  N.  J.  L.  465. 

8  Nickle  V.  Baldwin,  4  Watts  &  S, 


290;  Winter  v.  Newell,  49  Penn.  St, 
50  7;  MoPherson  v.  NeufTer,  11  Rich. 
(S.  C.)  267. 

Even  as  to  the  real  vendee  the 
charge  is  only  prima  facie  proof, 
"Evidence  that  the  original  charge  on 
the  plaintilFs  books  was  to  Rowell  by 
name  was  prima  facie  only,  and  not 
conclusive,  that  the  contract  of  hiring 
was  made  with  Rowell,  James  v. 
Spaulding,  4  Gray,  451 ;  Lee  v.  Wheel- 
er, 11  Gray,  239;  Commonwealth  v. 
Jeffries,  7  Allen,  564."  Gray,  J., 
Banfield  r.  Whipple,  10  Allen.  30. 

9  Keim  v.  Rush,  5  Watts  &  S.  377, 

10  Watts  V.  Howard,  7  Mete.  4  78; 
Adams  v.  Steamboat  Co.  3  Whart.  R. 
75;  Jackson  r,  Evans,  S  Miih.  4  76; 
Waggemann  v.  Peter.s,  22  111.  42; 
Dodson  V.  Sears,  25  111.  513;  Sloan  r, 
Ault,  8  Iowa,  229;  Slade  r.  Nelson, 
20  Ga.  365. 

"  Nickle  V.  Baldwin,  4  Watts  &  S. 
290;  Siioemaker  r.  Kcllog,  11  IVnn. 
St.  300;  Pritchard  v.  McOwen,  1  Nott 
&  M,  131, 

651 


§  688.] 


THE  LAW   OF   EVIDENCE. 


[book  n. 


a  transfer     of  a  principle  elsewliere   stated,^  the  one   is  regarded 

to  a  ledger,  f  I  '  '  & 

the  ledger     as  the  complement  of  the  other,  and  the  ledger,  if  called 

must  be  i         i  o 

produced.     lor,  must  be  produced.^ 

§  688.  It  follows  from  what  has  been  said,  that  in  states  where 
Writing  of  books  of  Original  entries  are  admissible  upon  the  oath 
parfy  may  ^^  ^^®  P^^^y,  sucli  books,  after  the  party's  death,  may 
be  proved,  be  received  on  the  testimony  of  administrators,  that 
the  books  of  the  decedent  are  in  their  possession,  and  that  the 
books  in  question,  being  books  of  original  entry,  are  in  the  de- 
cedent's handwriting,  and  among  his  books ;  they  on  their  face 
showing  that  they  were  made  in  the  regular  course  of  business.^ 

his  credit.'     To  this  extent  the  rule 


1  Supra,  §  618. 

2  Prince  v.  Swett,  2  Mass.  569; 
Bonnell  v.  Mawha,  37  N.  J.  199. 

"  The  phiintiff  sues  by  virtue  of 
the  statute,  in  his  own  name,  as  owner 
of  a  book  of  account,  which  had  been 
assigned  to  him,  the  assignor  having 
died.  In  order  to  substantiate  this 
claim,  certain  books  of  original  entries 
were  produced,  and  duly  proved  at 
the  trial.  It  further  appeared  that 
there  were  other  books  connected  with 
the  account  in  question,  one  of  them 
being  the  ledger,  into  which  the  ac- 
count had  been  carried.  The  books 
produced  were  overruled  by  the  court 
on  the  ground  that  the  evidence  did 
not  comprise  all  the  books  connected 
with  the  transaction.  The  present 
motion  is,  to  set  aside  the  nonsuit 
which  resulted  from  this  judicial  ac- 
tion. In  my  opinion,  the  ruling  of  the 
judge,  with  respect  to  the  evidence  in 
question,  was  clearly  right.  The  ledger 
was  a  part  of  the  party's  own  record 
of  the  matter  in  suit.  In  the  case  of 
Prince,  Executor,  v.  Swett,  2  Mass. 
569,  it  appeared  from  marks  in  the 
day-book  that  the  account  had  been 
transferred  to  the  ledger,  and  the 
court  said  :  *  When  an  account  is 
transferred  to  a  ledger  from  a  day- 
book, the  ledger  should  be  produced, 
that  the  other  party  may  have  advan- 
tage of  any  items  entered  therein  to 

652 


seems  to  be  undisputed;  that  is,  the 
ledger  is  a  necessary  part  of  the  proof 
when  it  affirmatively  appears  that  it 
contains  entries  relative  to  the  affair 
in  suit.  Even  the  case  of  Tindall  v. 
Mclntyre,  4  Zab.  147,  admits  the  rule 
in  this  restricted  form,  for  it  was  there 
held  that  the  ledger  was  immaterial, 
it  not  being  shown  that  any  of  the 
accounts  had  been  posted  or  credits 
entered  in  that  book.  Beyond  this 
limit,  the  rule  requiring  the  production 
of  all  the  relevant  books  of  the  cred- 
itor ought  not  to  be  narrowed.  Books 
of  account  are  evidence  of  a  party's 
own  making,  are  open  to  much  criti- 
cism, and,  being  violations  of  general 
principles,  are  admitted  only  on  the 
ground  of  necessity.  It  is  certainly 
requiring  but  little  to  exact  that  the 
whole  of  the  entries  made  by  the  party 
should  be  presented  in  court.  I  en- 
tirely concur  in  the  ruling  at  the  cir- 
cuit, that  the  fragment  of  evidence 
offered  could  not  be  received."  Beas- 
ley,  C.  J.,  Bonnell  v.  Mawha,  37 
N.  J.  199. 

8  See  Augusta  v.  Windsor,  19  Me. 
317;  Dodge  v.  Morse,  3  N.  H.  282; 
Welsh  V.  Barrett,  15  Mass.  380 ;  Van 
Swearingen  v.  Harris,  1  Watts  &  S. 
356;  Odell  v.  Culbert,  9  W.  &  S.  66; 
Hoover  v.  Gehr,  62  Penn.  St.  136; 
Bently  V.  Hallenback,  Wright  (Oh.), 


CHAP.  IX.] 


DOCUMENTS :  HOW  PROVED. 


[§  690. 


The  same  rule  holds  where  the  person  making  tlie  entry  is  be- 
yond reach  or  is  incompetent.^ 


XI.  PROOF  OF  DOCUMENTS. 

§  689.  Where  a  document  is  offered  in  evidence  as  executed 
by  a  particular  person,  it  must  ordinarily  be  proved  to 
have  been  executed  by  such  person. ^    When  offered  for   to  be 
a  collateral  purpose,  &  primd  facie  proof  of  execution  is   party  offer- 
sufl&cient.^     The  execution  of   a   paper  so  introduced   '"^' 
may  be  proved,  it  is  scarcely  necessary  to  say,  by  the  admission 
of  the  party,  unless  such  proof  is  required  by  law  to  be  by  sub- 
scribing witnesses.^     Whether  an  admission  can  prove  the  con- 
tents of  a  paper  is  elsewhere  discussed.^ 

§  690.  As  will  hereafter  be  more  fully  seen,  proof  of   Otherwise 
"      ^  _  J  '  1  wtien  pro- 

execution  of  a  document  is  dispensed  with  when  it  is   duced  by 


168;  Spence  v.  Sanders,  1  Bay  (S. 
C),  119;  McBride  v.  Watts,  1  Mc- 
Cord,  384.  See  Nicholls  v.  Webb,  8 
Wheat.  326.  See  Doe  v.  Turford,  3 
B.  &  Ad.  890;  Doe  v.  Skinner,  2  Ex, 
384;  Smith  v.  Blakey,  L.  R.  2  Q.  B. 
328  ;  and  see  fully  supra,  §  238. 

1  Ibid.;  Bartholomew  v.  Farwell, 41 
Conn.  107;  Bear  v.  Trexler,  3  Notes 
of  Cases  (Penn.),  214. 

"  The  book  of  a  decedent  appearing 
on  its  face  to  contain  charges  of  mer- 
chandise sold  and  delivered,  is  admis- 
sible in  evidence  on  proof  of  his  hand- 
writing alone.  It  is  not  necessary  to 
accompany  it  with  any  evidence  as  to 
the  time  and  manner  in  which  the  en- 
tries were  made.  This  would,  gener- 
ally, be  impossible,  from  the  death  of 
the  only  party  having  any  knowledge 
of  the  matter.  The  presumption, pr/witi 
facie,  is,  that  the  book  of  a  decedent 
was  regularly  kept,  as  a  record  of  his 
daily  transactions.  If  testimony  is  sub- 
sequently introduced,  which  raises  any 
question  upon  the  subject,  it  is  for  the 
jury  to  determine,  under  proper  in- 
structions from  the  court.  Van  Swear- 


party 

ingen  v.  Harris,  1  W.  &  S.  356;  Odell 
V.  Culbert,  9  Ibid.  66. 

"  There  was  nothing  on  the  face  of 
the  book  produced  below  to  destroy 
this  presumption.  It  was  no  valid  ob- 
jection that  the  account  was  kept  in 
ledger  form.  Rodman  v.  Hoop's  Ex'rs, 
1  Dall.  85;  Thomson  i-.  II()p[)fr,  1  W. 
&  S.  468."  Sharswood,  J.,  Hoover 
I'.  Gehr,  62  Penn.  St.  138. 

2  Supra,  §  357;  PuUen  i*.  Hutchin- 
son, 25  Me.  249;  Dunlap  v.  Glidden, 
31  Me.  510;  Wallace  v.  Goodall,  18 
N.  H.  439  ;  Hayden  v.  Thayer,  5 
Allen,  162;  Linn  v.  Ross,  16  N.  J. 
L.  55;  Granniss  t;.  Irvin,  39  Ga.  22; 
Anderson  r.  Snow,  8  Alab.  504  ; 
Smith  V.  Scantling,  4  Blackf.  443  ; 
Owen  V.  Thomas,  33  111.  320;  Cartmell 
V.  Walton,  4  Bibb,  488;  Gentry  t. 
Doolin,  1  Bu.sh,  1;  Sinclair  v.  Wood, 
3  Cal.  98;  Watson  i-.  Hujjkins,  2  7  Tex. 
637. 

'  Means  v.  ISIeans,  7  Rich.  (S.  C.) 
533. 

*  Wright  V.  Wood,  23  Penn.  St. 
120;  Powell  r.  Adams,  9  Alo.  758.  In- 
fra §  1095. 

6  Infra, §  1091. 

Go3 


§  692.]  THE   LAW   OF  EVIDENCE.  [BOOK  II. 

claiming  produced,  ill  obedience  to  notice,  by  the  adverse  party, 

under  it.  wlio  relies  on  it  as  part  of  his  title. -^ 

§  691.  In    many  jurisdictions,   statutes   exist  which  dispense 

Instru-  Avith  proof  of  instruments  on  which  suit  is  brought,  ex- 

whicTisuit  ^*^P^  ^^  those  cases  in  which  the  execution  of  the  in- 

is  brought  strument  is  denied  by  the  defendant  under  oath.     By 

require  no  i  i    .      •  •       •  •       />  i 

proof  un-  other  statutes  the  plaintiff,  who,  on  bringing  suit,  files 
by  affida-  ^w  instrument  of  writing  on  which  the  suit  is  brought, 
^'  ■  is  entitled  to  judgment  on  a  specified  day,  unless  the 

defendant  should,  before  such  day,  file  an  affidavit  of  defence. 
Unless  in  such  affidavit  the  genuineness  of  the  instrument  is  con- 
tested, such  genuineness  need  not  afterwards  be  proved  by  the 
plaintiff.  We  have,  therefore,  in  such  cases,  adopted  a  remedy 
in  some  respects  analogous  to  the  Diffessions  Oath  (jusjuran- 
dum  diffessionis)  of  the  later  Roman  practice,^  by  which  a  party 
who  does  not  deny  on  oath  the  genuineness  of  an  instrument  set 
up  against  him  is  assumed  to  concede  such  genuineness.^ 

§  692.  A  seal  was  in  the  medigeval  practice  essential  to  attest 
Seals  may  ^^^^  intention  of  a  party  to  bind  himself  by  a  docu- 
thoriza^""  ment ;  and  even  witnesses  in  this  way  made  their  sig- 
^'o°-  natures.     The  seal  was  originally  made  by  the  impress 

of  a  seal  ring.  In  later  times  a  stamp  was  used.  As  late  as 
the  twelfth  century  the  word  aimulus  was  used  as  expressing  a 

1  Infra,  §  736;  and  see  supra,  §§  Hurt  r.  McCartney,  18  111.  129;  Otto 
152-160;  Jackson  v.  "Wilkinson,  17  v.  Jackson,  35  111.  349;  Hardman  v. 
Johns.  R.  157;  St.  John  v.  Ins.  Co.  Chamberlin,  1  Morris  (Iowa),  104; 
2  Duer,  419;  Roger  v.  Hoskins,  15  Savery  v.  Browning,  18  Iowa,  246; 
Ga.  270;  Herring  r.  Rogers,  30  Ga.  Clinton  Bank  r.  Torry,  30  Iowa,  85; 
615.  Hinchliff  v.  Hinman,    18  Wise.  130; 

2  Ortloif,  Jurist.  Hand.  i.  60  ;  Spicer  v.  Smith,  23  Mich.  96 ;  Kelly 
Weiske,  Rechtslex.  xi.  681.  v.  Paul,    3    Grat.    191;    Shepherd   v. 

8  See  Carjizov.  Jur.  for.  P.  i.  Const.  Frys,  3  Grat.  442;  Madden  v.  Burris, 

10;  Endemann,  §  85.  1  Brev.  387;  Williams  i'.  Rawlins,  10 

As  to  rulings  on  the  various  stat-  Ga.  491 ;  Singleton  v.  Gayle,  8  Port, 
utory  modifications  of  this  principle,  270;  Holmes  i).  All,  1  Mo.  419  ;  Foster 
see  Libby  v.  Cowan,  36  Me.  264;  v.  Nowlin,  4  Mo.  18;  Simms  v.  Law- 
Rape  V.  Westcott,  3  Harr.  (N.  J.)  rence,  9  Mo.  657  ;  Jones  v.  Walker, 
284;  Ring  v.  Foster,  6  Ohio,  279;  5  Yerg.  427;  Austin  v.  Townes,  10 
Somers  V.  Harris,  16  Ohio,  262;  Linn  Tex.  24;  May  v.  Pollard,  28  Tex. 
r.  Buckingham,  1  Scam.  451;  Illinois  677;  McCollum  v.  Cushing,  22  Ark. 
Ins.  Co.  V.  Marseilles  Co.  6  111.  236;  540. 
Peoria  R.   R.    v.  Neill,   16    111.    269; 

654 


CHAP.  IX.] 


DOCUMENTS  :    HOW    PROVED. 


[§  693. 


Substantial 
idcntilica- 
tionissulB- 
cient. 


seal ;  afterwards  came  into  use  sigillunij  imago,  imaginis  signum 
secretum.  As  substitutes  for  seals  were  sometimes  used  pieces  of 
leather  or  of  parchment,  attached  to  the  end  of  the  writing,  and 
on  these  pieces  were  drawn  figures  accepted  as  equivalent  to  the 
devices  on  seals.  These  figures  were  usually  in  notes  ;  and  hence 
persons  so  signing  were  called  in  the  old  books  nodatores.  In 
Germany,  from  the  twelfth  to  the  fifteenth  century,  seals,  in  one 
or  other  of  these  forms,  were  essential  to  give  binding  force  to 
obligations  or  attestations.^  By  the  English  common  law,  they 
are  still  essential  to  the  technical  validity  of  bonds  and  deeds. 
But  even  by  this  law,  they  are  now  complements  to,  not  substi- 
tutes for,  the  name  of  the  party  written  by  himself.' 

§  693.  A  sealed  document  has  been  held  to  be  sufficiently  ex- 
ecuted, though  there  be  but  one  seal  actually  attached 
to  the  signatures  of  several  persons.^  Scrolls  drawn  by 
a  pen,  or  stamped  by  a  wooden  block,  have  been  held 
to  constitute  an  adequate  seal ;  *  when  a  seal,  however, 
is  self  proving,  it  must  be  capable  of  exact  identification.^  A 
distinct  impression  upon  paper,  without  the  application  of  wax  or 
wafer,  has  been  held  sufficient,  at  common  law,  for  a  corporation 
seal.^  The  averment,  "  witness  my  hand  and  seal,"  will  not  sup- 
ply the  actual  absence  of  either  seal  or  scroll,"  unless  there  is 

Stat.  13),  public  seals  may  be  made 
by  a  mere  stamp  on  paper,  but  private 
seals  "  shall  be  made  as  heretofore  on 
wafer,  wax,  or  some  similar  sub- 
stance." 

6  Infra,  §  G95. 

6  Davidson  v.  Cooper,  11  M.  &  W. 
778;  Pillow  v.  Roberts,  13  How.  472; 
Woodman  t;.  R.  R.  50  Me.  540;  Al- 
len V.  R.  R.  32  N.  II.  446;  Manches- 
ter r.  Slason,  13  Vt.  334;  Ilendee  v. 
Pinkerton,  14  Allen,  381;  Curtis  v. 
Leavitt,  15  N.  Y.  9  ;  Corrij^an  v.  Falls 
Co.  3  Ilalst.  Ch.  4SI).  Hut  printin;;  of 
fac-similes  of  corporation  seals,  such 
j)rintin<;  being  done  in  gross  by  the 
usual  process  of  a  printing-press,  ha.-t 
been  hclil,  in  Massachusetts,  not  to 
bo  a  seal.  Bates  v.  R.  R.  10  Allen, 
251. 

7  Chilton  V.  People,  C6  111.  501. 

666 


^  See  Spangenberg  von  Urkundcn- 
beweise,  i.  236. 

2  An  able  exposition  of  the  history 
of  seals,  and  the  bearing  of  this  his- 
tory on  our  present  practice,  will  be 
found  in  the  argument  of  counsel  in 
Haven  v.  R.  R.  12  Allen,  337,  after- 
wards published  in  1  Am.  Law  Rev. 
638.     Sec  infra,  §§  104-5. 

8  Lunsford  v.  Lead  Co.  54  Mo. 
426. 

*  R.  V.  St.  Paul's,  Covent  Garden, 
7  Q.  B.  232;  Woods  v.  Banks,  14  N. 
H.  101  ;  Dewling  v.  Williamson,  9 
Watts,  311;  Michenor  c.  Kinney, 
Wright  (Ohio),  459  ;  Underwood  v. 
Dollins,  47  Mo.  259;  State  v.  Thom- 
hon,  49  Mo.  188;  Brooks  v.  liartman, 
1  lieisk.  36.  Infra,  §  1313;  though 
see  Blackwell  v.  Hamilton,  47  Ala.  470. 
In   New  York,  by   statute   (2  Fay's 


§  694.]  THE  LAW  OF  EVIDENCE.  [BOOK  II. 

ground  to  infer  that  a  seal  had  been  attached,  but  is  effaced.^ 
But  where  seals  are  a  superfluity,  they  may  be  treated  as  a  nul- 
lity .^  A  seal  of  an  agent  may  be  deemed,  in  contemplation  of 
law,  the  seal  of  the  principal ;  ^  but  it  is  otherwise,  as  we  will  see 
when  the  principal  (a  corporation)  has  an  official  seal,  and  the 
agent  affixes  what  he  describes  as  his  private  seal.* 

§  694.  For  a  corporation,  a  seal  is  the  technically  correct  mode 

of  executing  a  document,  and  the  seal  of  the  corpora- 

view'as\^^    tion  is  prhiid  facie  proof  of  due  execution.^     At  the 

corpora-       same  time  it  must  be  remembered  the  strict  rule  of  the 

tions. 

common  law  in  this  respect  has  been  much  relaxed  in 
England,  and  still  more  in  the  United  States.  In  England,  the 
modern  practice  is  thus  stated  by  Rolfe,  B.  :  "A  corporation 
which  has  a  head  may  give  a  personal  command  and  do  small 
acts :  as,  it  may  retain  a  servant ;  it  may  authorize  another  to 
drive  away  cattle,  damage-feasant,  or  make  a  distress,  or  the 
like.  These  are  all  matters  so  constantly  recurring,  or  of  so 
small  importance,  or  so  little  admitting  of  delay,  that,  to  require 
in  every  such  case  the  previous  aflBxing  of  the  seal,  would  be 
greatly  to  obstruct  the  every  day  ordinary  convenience  of  the 
body  corporate,  without  any  adequate  object.  In  such  matters, 
the  head  of  the  corporation  seems  from  the  earliest  times  to  have 
been  considered  as  delegated  by  the  rest  of  the  members  to  act 
for  them."  ^  It  has,  however,  been  held,  that  although  a  business 
corporation  may  employ  subordinate  servants  by  writings  not 
under  seal,  it  is  otherwise  with  municipal  and  semi-municipal 
corporations  ;  and  that  the  contract  for  the  engagement  of  a  clerk 
to  a  master  of  a  workhouse  by  a  board  of  guardians  must  be 
under  seal.'^     But  even  in  England,  it  is  held  that  a  contract  not 

1  Crawford  Peer.  2  H.  of  L.  Cas.  5  Doe  v.  Chambers,  4  A.  &  E.  410; 
634  ;  Sandilands,  in  re,  L.  R.  6  C.  P.  S.  C.  6  N.  &  M.  539;  St.  John's  Ch. 
411.     See  infra,  §  1313.  v.  Steinmetz,  18  Penn.  St.  273;  Bar- 

2  Blanchard  v.  Blackstone,  102  ton  v.  Wilson,  9  Rich.  (S.  C.)  273. 
Mass.  343.  See,  also,  Angell  &  Ames  on  Corp. 

8  Savings   Bk.    v.  Davis,    8  Conn.  (10th   ed.)    §   224;  Burrill  v.   Bk.    2 

200.  Mete.  166;  Com.  Bk.  i-.  Kortright,  22 

*  Tippits  V.  Walker,  4  Mass.  597;  Wen4.  348;  Berks.  T.  R.  i-.  Myers,  6 

Geary  v.  Kansas,   61  Mo.    379;  Ran-  S.  &  R.  12. 

dall  y.  Van  Vechten,   19  Johns.   60;  ®  Mayor  of  Ludlow  v.   Charlton,  6 

Dubois  V.  Canal    Co.  4   Wend.    285;  M.  &  W.  821. 

Mann  v.  Pentz,  2  Sandf.  Ch.  271.  '  Austin  v.    Guardians  of  Bethnal 

656 


CHAP.  IX.]  DOCUMENTS :   PROOF   OF   SEALS.  [§  694. 

under  seal  binds  in  all  matters  incidental  to  the  objects  of  the 
corporation.  Thus  seals  are  not  necessai'y  to  contracts  to  repair 
the  premises  of  the  corporation, ^  to  buy  or  sell  such  goods  as  the 
corporation  is  formed  to  buy  and  sell,^  to  purchase  goods  for 
its  purposes.^  To  bills  of  exchange,  by  corporations,  seals  are 
clearly  unnecessary.^  On  the  other  hand,  when  the  goods  to  be 
supplied  are  not  such  as  those  in  which  the  corporation  usually 
deals ;  ^  or  when  the  contract  is  of  such  a  magnitude,  and  of  such 
an  unusual  description,  as  to  require  reasonably  the  formal  and 
express  assent  of  the  corporation,  the  fact  must  be  proved  by 
writing  under  the  corporate  seal ;  ^  though  it  is  conceded  that 
magnitude  per  se  is  not  an  element  in  deciding  whether  a  con- 
tract not  under  seal  is  binding  on  the  corporation."  So,  also,  it 
must  l)e  kept  in  mind,  that  "  although  corporations  can  only  con- 
tract under  seal,  they  are  bound  by  their  conduct,  and  by  the  acts 
of  their  solicitors,  after  their  contract,  just  as  an  individual  would 
be  ;  "  ^  and  so  in  torts.  But  the  rule,  whose  ligatures  in  England 
are  gradually  dissolving,  has  in  the  United  States  ceased  to  ex- 
ist ;  and  with  us  the  practice  is,  to  require  the  affixing  of  a  seal 
only  in  cases  of  the  transfer  of  real  estate,  or  in  the  appointment 
of  officers  to  consummate  such  transfer ;  and  corporations  are  held 
liable  on  contracts  made  by  mere  resolution  of  their  directors, 
without  a  seal,  or  by  order  of  their  agents,  to  whose  appointment 
no  seal  has  been  attached.^     The  private  seal  of  the  agent,  as  we 

Green,  L.  R.  9  C.  P.  91;  43  L.  J.  C.  «  Homersham    v.    Wolverhampton 

P.   100;  22   W.   R.   406;  cf.   Dyte  v.  Railway  Co.  G  Excli.  13  7. 

Guardians  of  St.  Pancras,  27  L.  T.  N.  ''  Per  Erie,  J.,   Henderson  v.  Aus- 

S.  342;  Powell's  Evidence,  4th  ed.  3G5.  tralian    Steam   Navij^ation  Co.  5  E.  & 

See  Whart.  on  Agency,  §  59  et  seq.  B.  409. 

1  Saunders  v.  St.  Neot's  Union,  8  *  Per  Lord  St.  Leonard."!,  Eastern 
Q.  B.  810.  Counties  Railway  Co.  t;.    ILiwkes,  5 

2  Church   V.   Imperial   Gaslight   &  H.  L.  Cas.  376. 

Coke  Co.  6  A.  &  E.  846.  "  Bank  Col.  v.  Patterson,  7  Cranch, 

8  South  of  Ireland  Colliery  Co.   v.  305 ;  Bank   U.    S.  v.    Dandridgc,    12 

Waddle,  L.  R.  3  C.  P.  463;  L.  R.  Wheat.  G8;    Maine    Co.    v.   Longlcy, 

4  C.  P.    617;  37   L.  J.  C.  P.  211;  38  14  ISIe.  444;   Lime   Rock  Bk.  i-.  Ma- 

L.  J.  C.  P.  338.  comber,  29   Me.  5G4;   White  r.  Man. 

*  Murray  v.  East  India  Co.  5  B.  &  Co.  1    Pick.  215;  Peterson  v.  Mayor, 

A.  204.  17  N.  Y.  449;  McGargell  r.  Coal  Co. 
6  Copper  Miners'  Co.  v.  Fox,  16  Q.  4  W.  &  S.  424;  Bank  of  Ky.  v.  Sch. 

B.  229.  Bk.  1  Parsons  Ei].  Cas.  251;  Elysville 
VOL.  1.              42  057 


§  696.]  THE   LAW    OF   EVIDENCE.  [BOOK  11. 

have  seen,^  cannot  be  substituted  for  the  official  seal  of  the  cor- 
poration. It  is  otherwise,  however,  when  the  seal  is  not  distinct- 
ively that  of  the  agent,  but  is  described  in  the  document  as  the 
seal  of  the  corporation. ^  But  it  is  not  essential  that  the  seal 
attached  should  be  technically  the  corporate  seal.  For  the  pur- 
pose of  a  deed,  the  corporation  may  adopt  a  private  seal,  though  it 
is  essential  that  the  document  should  aver,  "  under  their  seal."  ^ 

The  record  copy  of  a  deed  is  not  fatally  defective  because  it 
does  not  copy  the  seal  of  the  acknowledgment  of  tlie  original.^ 

§  695.  As  we  have  already  seen,  a  public  document,  verified 
1  ^y  ^^^  official  seal,  is  infra-territorially  proved  by  such 
proves  it-  seal.^  The  law  assumes  that  the  public  seals  of  the 
state  are  known  to  all  its  judicial  officers  ;  nor,  in  view 
of  the  heavy  penalties  imposed  on  the  falsification  and  forgery  of 
such  seals,  will  it  be  supposed,  without  proof,  that  any  particular 
seal  is  either  counterfeit,  or  impressed  irregularly.  Hence,  it  is 
the  duty  of  a  judge  to  hold  that  a  writing  duly  authenticated  by 
a  public  seal  is  genuine,  until  the  contrary  be  proved.  If,  how- 
ever, a  seal  is  so  defaced  as  to  be  uncertain,  evidence  may  be 
received  to  determine  its  genuineness.^  Even  a  foreign  sover- 
eign's seal  has  been  allowed,  from  the  necessity  of  the  case,  to 
be  primd  facie  proof  of  its  own  authenticity.'^  When  a  seal  is  so 
offered,  it  must  be  distinguishable  ;  ^  or  at  least  capable  of  verifi- 
cation by  parol. 

§  696.  What  force  is  to  be  assigned  to  the  use  of  a  mark,  as 
Mark  may  distinguished  from  the  writing  of  a  name,  depends  upon 
kntlo's^'-  ^^^®  circumstances  in  which  the  mark  is  used.  That  a 
nature.         mark  may,  in  a  proper  case,  bind  the  party  making  it, 

V.  Okisko,  1  Md.  Ch.  392;  and  other  As  to  form  of  corporate  seal,  see  su- 

cases  cited   Ang.    &  Ames  on    Corp.  pra,  §  1313. 

(10th  ed.)  §  238;   Whart.  on  Agen.  *  Geary    v.  Kansas,  61    Mo.  379; 

§  59.  citing    Hedden  v.   Overton,  4    Bibb, 

*  See  authorities  in  last  note  of  §  406;  Griffin  v.  Sheffield,  38  Miss.  359; 

693.  Sneed  t;.  Ward,  5  Dana,   187;  Smith 

2  Flint  V.  Clinton,   12  N.  H.  433;  v.  Dall,  13  Cal.  510. 

Mill  Dam   v.   Hovey,    21   Pick.  428 ;  6  gee  fully  for    authorities    supra, 

Susquehanna    Bridge  v.   Ins.    Co.   3  §  319. 

Md.    305;  Phillips  v.  Cofifee,   17   111.  «  Weiske,  Rechtslex.  xi.  6  78.     See 

154.  supra,  §  693. 

'  Jones  r.  Gal  way  Commis.  11   Ir.  ''  Supra,  §  319. 

Law,  435,  cited  Taylor's  Ev.  §   128.  8  The  Atlantic,  1  Abb.  Adm.  451. 
658 


CHAP.  IX.]  DOCUMENTS  :    PROOF   OF   MARKS.  [§  696. 

is  illustrated  in  the  Roman  law  by  more  than  one  ruling.  An 
inventory,  for  instance,  must,  to  be  efifective  in  that  law,  be 
signed  by  the  heir  ;  and  this  signature,  it  is  determined,  may  be 
made,  when  the  heir  cannot  write,  by  his  making  the  sign  of  the 
cross  under  the  inventory,  such  mark  being  attested  by  a  tahula- 
rius  (registrar)  who  signs  for  him,  in  the  presence  of  witnesses.^ 
It  is  subsequently  provided  that  when  a  contracting  party  is 
incapable  of  writing,  and  signs  his  mark,  this  mark  must  be 
countersigned  by  a  tabularius  in  the  presence  of  witnesses.^  A 
mark,  therefore,  is  by  the  Roman  law  recognized  as  equivalent, 
when  a  person  cannot"  write,  to  the  writing  of  his  name  ;  but  to 
prevent  fraud  or  mistake,  this  mark  must  be  peculiarly  attested. 
In  the  Middle  Ages,  seals,  and  then  scrolls,  were  accepted,  as 
we  have  seen,  as  substitutes  for  autographic  names ;  and  as  the 
art  of  writing  was  then  confined  to  a  very  few,  documents  were 
considered  binding  on  parties  who  attached  to  them  their  seals. 
In  our  own  times,  although  it  has  been  argued  with  much  force 
that  a  mark,  instead  of  a  seal,  or  of  an  autographic  name,  is  no 
signature,^  we  may  consider  the  following  positions  as  established : 

1.  A  party  who  intelligently  makes  a  mark,  in  place  of  writing 
his  own  name,  binds  himself,  as  to  parties  bond  fide  accepting 
the  document  on  the  faith  of  such  mark.* 

2.  When  a  document  is  produced  in  evidence,  purporting  to  be 
signed  by  a  third  party,  who  is  proved,  or  can  be  presumed, 
to  be  unable  to  write  his  name,  such  mark,  if  shown  to  have  been 
made  by  the  party,  is  to  be  treated  as  equivalent  to  his  written 
name.  The  mark  may  be  proved  by  a  witness  who  had  seen  the 
party  make  previous  similar  marks.^  But  there  must  be  some 
proof  aliunde  to  identify  the  party  charged  with  the  mark.^ 

3.  When,  however,  a  third  party  so  making  a  mark  is  shown 
to  be  capable  of  writing,  then  the  presumption  is  that  the  mark 
was  not  intended  to  bind  him,  but  was  put  on  the  paper  acciden- 

1  L.  22,  §  2  ;  C.  vi.  30.  ^  George  v.  Surrey,  M.  &  M.  516  ; 

2  Nov.  T3,  cap.  8.  Strong  v.  Brewer,  17  Ala.   706. 

^  See  Spangenburg,  von  Urkunden-  *  Whitelocke    i'.  Mnsgrove,  I   C.  & 

beweis,  i.  238.  M.  511  ;  3  Tyr.  541;  Hays  v.  Hays,  6 

*  So,  Zacharie  i'.  Franklin,  12  Pet.  Penn.  St.  3G8;  IJallinger  v.  Davis,  29 

151  ;    McDermott    v.    McCormick,    4  Iowa,  512.     See  George  v.  Surrey,  1 

Harr.  (Del.)  543;  Bussey  v.  Whitaker,  M.  &  M.  516;  Savage  v.  HutcLinsoQ, 

2  Nott  &  MeC.  3  74.  cited  infra,  §  700. 

659 


§  697.]  THE   LAW   OF  EVIDENCE.  [BOOK  II. 

tally  or  as  an  intentionally  incomplete  sign.  No  party,  however, 
can  set  np  such  a  defence,  against  those  who  accepted  his  mark 
on  the  faith  that  it  bound  him,  he  giving  such  grounds  as  would 
impose  upon  a  good  business  man.  And  it  is  always  open  to  the 
party  relying  on  such  mark  to  show  that  it  was  made  intelligently 
and  intentionally,  for  the  purpose  of  expressing  formal  assent  to 
the  document  so  subscribed. ^ 

4.  An  attesting  witness's  mark  is  to  be  verified  as  is  the  mark 
of  a  party .2  But  in  case  of  such  attestation,  the  signature  of  the 
party  himself  ought,  for  greater  safety,  also  to  be  proved.^ 

§  697.  Under  the  federal  statutes  of  1864  and  ISQQ,-^  provid- 
ing: that  instruments  without  stamps  should  not  be  re- 
Stamps  ^         .  .  ,  •        e  ^ 

when  uec-  ceived  in  evidence,  the  question  frequently  arose  whether 
must'be  stamps  were  necessary  prerequisites  to  the  reception  of 
attac  e  .  instruments  in  state  courts.  As  to  this  question,  it  is 
now  necessary  only  to  say,  that  if  the  statutes  in  this  respect  con- 
trolled the  state  courts,  then  there  would  be  no  other  department 
of  state,  or  local  law,  whether  as  to  principle  or  practice,  which 
Congress,  at  least  by  subjecting  litigation  of  the  particular  point 
to  a  tax,  would  not  in  like  manner  be  able  to  control.  To  admit 
the  constitutional  right  of  Congress,  therefore,  to  attach  limita- 
tions to  the  reception  of  evidence  in  the  state  courts,  would  be 
to  admit  the  right  of  Congress  to  control  the  materials  on  which 
the  decisions  of  the  courts  of  particular  states  should  be  based. 
That  the  limitation  in  question  was  not  within  the  power  of 
Congress  was  ruled  by  a  series  of  state  courts.^     In  other  juris- 

1  See  Weiske,  Rechtslexicon,  xi.  marksman,  and  that  the  signs  or  marks 
673-4.  on  those  documents  were  respectively 

2  George  v.  Surrey,  1  M.  &  M.  516.  the  mark  or  sign  of  W.  P.,  used  by 
See  Watts  v.  Kilburn,  7  Ga.  356.  him  in   place  of   signing  his   name  ; 

8  Ibid. ;    Gilliam    v.    Perkinson,    4  Shadwell,  V.  C,  thought  the  proof  of 

Rand.  325.    Infra,  §  727.  the   signature   sufficient.       Pearcy   v. 

In  an  equity  case  in  England,  where  Dicker,  13  Jur.  997.    See,  also,  Baker 

it  was  sought  to  prove  a  debt  due  by  v.  Dening,  8  A.  &  E.  94;  In  the  Goods 

a  deceased  person  to  one  W.  P.,  and  to  of  Bryce,  2  Curt.  325. 
prevent  the  debt  from  being  barred  by         *  See,  for  statutes  imposing  tax,  U. 

the  statute  of  limitations,  receipts  for  S.  Rev.  Stat.  §§  3421-2;  for  repealing 

interest  were  produced  in  the  handwrit-  statute,  17  Stat,  at  Large,  256. 
ino-  of  the  deceased,  and  signed  with        ^  Carpenter   v.   Snelling,  97  Mass. 

the  christian  and  surname  of  W.  P.,  452;  Green  v.  Holway,  101  Mass.  243; 

havino-  a  cross  between  them;  and  an  Moore  v.  Quirk,  105  Mass.  49;   Grif- 

affidavit  was  produced  that  P.  was  a  fin  v.  Ranney,  35  Conn.  239 ;  People 

660 


CHAP.  IX.] 


DOCUMENTS  :   STAMPS. 


[§  698. 


dictions,  however,  this  limitation  of  the  scope  of  the  statutes  has 
been  denied,  though  on  reasoning  which  it  is  difficult  to  reconcile 
with  the  tenor  of  authorities  in  this  branch  of  private  international 
law,  or  with  the  sovereignty  conceded  by  the  federal  Constitution 
to  the  states  in  all  matters  of  process  and  evidence.^  A  stamp 
act  has  no  force,  on  the  principles  of  international  law,  unless 
imposed  by  the  local  sovereign  ;  ^  and  to  concede  sovereignty  to 
the  federal  government  as  to  the  evidential  rules  of  state  courts 
is  to  surrender  state  sovereignty  in  one  of  its  prime  functions. 

§  698.  Even  where  the  statutes  were  held  to  apply,  it  was, 
in  several  instances,  determined  that  if  there  was  no  intent 
to  defraud,  the  document  was  admissible.^  So,  both  in  Eng- 
land and  in  this  country,  it  is  settled  that  the  stamp  acts  apply 
only  to  documents  which  are  introduced  as  the  basis  of  an  ac- 
tion, and  not  to  those  which  are  introduced  for  other  purposes.* 


V.  Gates,  43  N.  Y.  40;  Moore  v. 
Moore,  47  N.  Y.  467  ;  Hale  v.  Wil- 
kinson, 21  Grat.  75  ;  Wallace  v.  Cra- 
vens, 34  Ind.  534 ;  Craig  v.  Dim- 
ock,  47  III.  308;  Wilson  v.  Mc- 
Kenna,  52  111.  43;  Clemens  v.  Conrad, 
19  Mich.  170;  Sammons  v.  Halloway, 
21  Mich.  162;  Sporrer  v.  Eifler,  1 
Heisk.  633  ;  Whigham  v.  Pickett,  43 
Ala.  140  (but  see  Mobile  R.  R.  v. 
Edwards,  46  Ala.  267);  Bumpass  v. 
Taggart,  26  Ark.  398  ;  Daily  v.  Coken, 
33  Tex.  815  ;  Jacobs  v.  Spofford,  34 
Tex.  152;  Duflfy  v.  Hobson,  40  Cal.  240. 

^  Chartiers  v.  McNamara,  72  Penn. 
St.  278;  Hugus  v.  Strickler,  19  Iowa, 
413;  Byington  v.  Oaks,  32  Iowa,  488. 
See  Patterson  v.  Gile,  1  Col.  T.  200  ; 
Hoops  V.  Atkins,  41  Ga.  109  ;  Hum- 
phreys V.  Wilson,  43  Miss.  328.  Sec, 
however,  Davis  v.  Richardson,  45 
Miss.  499;  Corrie  v.  Billiu,  23  La.  An. 
250. 

In  the  supreme  court  of  the  United 
States,  the  point  was  presented  in  Oc- 
tober term,  1873,  after  the  death  of 
Chief  Justice  Chase  and  before  his 
successor  was  appointed,  and  the  eight 
associate  justices  were  equally  divided 


in  opinion,  so  the  matter  is  still  left 
open  for  determination  in  the  ultimate 
tribunal.  Note  by  the  Reporter. 
Emery  v.  Hobson,  63  Me.  33. 

2  Whart.  Confl.  of  Laws,  §  693 ; 
Fant  V.  ]\Iiller,  17  Grat.  47  ;  Skinner 
V.  Tinker,  34  Barb.  333.  See  infra, 
§780. 

8  Emery  v.  Hobson,  63  Me.  33  ; 
Baker  v.  Baker,  6  Lansing,  509;  Corry 
Bank  v.  Rouse,  3  Pittsb.  18;  Ricord  v. 
Jones,  33  Iowa,  26;  Timp  v.  Dock- 
ham,  29  Wise.  440 ;  State  v.  Hill,  30 
Wise.  416;  Whitehill  v.  Skickle,  43 
Mo.  537.  "  To  the  admission  of  this 
instrument  in  evidence  the  defendant 
seasonably  objected,  upon  the  ground 
that  it  was  not  stamped  as  required 
by  the  acts  of  Congress  of  the  United 
States.  The  plaintiff  testified  that  the 
omission  to  stamp  was  with  no  intent 
upon  his  part  to  defraud  the  revenue, 
nor  with  any  other  fraudulent  intent 
on  his  part.  The  instrument  was 
properly  admitted."  Emery  r.  Hob- 
son, 63  Me.  33. 

*  Mathewson  v.  Ross,  2  II.  of  Lds. 
286;  Atkins  v.  Plympton,  44  Vt.  21; 
Moore  v.  Moore,  4  7  N.  Y.  468  ;  Hell- 
661 


§  700.]  THE    LAW    OF   EVIDENCE.  [BOOK  II. 

So  as  proving  the  admission  of  a  party,  a  document  need  not  be 
stamped.^ 

§  699.  Again,  where  a  stamp  is  deemed  essential,  it  is  con- 
ceded that  it  is  enough  if  it  be  placed  on  the  document  at  any 
time  before  it  is  offered  in  evidence.^  Nor  is  it  necessary,  so 
it  has  been  ruled,  that  the  stamps  should  be  cancelled,  as  required 
by  the  revenue  laws,  by  the  initials  of  the  maker  of  the  instru- 
ment.^ So  in  Pennsylvania,  where  the  authority  of  the  stamp 
acts  in  general  is  yielded,  it  is  held  that  a  lost  instrument 
can  be  proved  by  secondary  evidence  without  showing  that  it 
was  stamped.^  In  Mississippi,  where  it  has  been  held  that  a  doc- 
ument is  unavailable  for  want  of  a  stamp,  the  plaintiff  can  re- 
cover on  the  common  counts  for  goods  sold  or  money  lent.^  It 
has  also  been  ruled  in  Pennsylvania  that  the  omission  of  a  stamp 
cannot  be  used  to  indicate  want  of  consideration.^ 

§  700.   Since  documents  executed  in  foreign  lands  are  to  be 

presumed   to  have  been  rightly  attested  until  the  con- 
Documents   '-  .  , 
to  be  exe-     trary  be  shown,'^  the  burden  of  showing  such  contrary 

CUtGCl   (IC~ 

cording  to  is  Oil  the  defence.  No  doubt,  when  an  ordinary  con- 
oca  aws.  ^j,j^Q^  jg  sug(j  on,  such  proof  as  the  lex  fori  requires  will 
be  primd  facie  sufficient  to  enable  the  contract  to  be  put  in  evi- 
dence ;  the  law  being  that  the  foreign  law,  with  homogeneous 
jurisprudences,  is  presumed,  until  the  contrary  be  shown,  to  be 
the  same  with  the  domestic.^  "  If,  therefore,  a  question  arises  be- 
fore the  tribunal  of  one  state,  in  which  an  instrument  written  in 

man  v.   Reis,   1   Cincin.  30;    Reis  v.  Logan  i;.  Dils,  4  W.  Va.  89  7  ;  Altera. 

Hellman,  25  Oh.  St.  180.     See  infra,  McDougal,    26    La.    An.    245.      See, 

§§  10!S2,  1124.  however,  Whigham  v.  Pickett,  43  Ala. 

1  2  Phil.  Ev.  3d  ed.  397;  3  Parsons  140. 

on  Cont.  295;  Mathewson  v.-  Ross,  2  ^  D'Armond  v.  Dubose,  22  La.  An. 

H.  of  Lords,  286;  Cook  v.  Shearman,  131;    Schultz    v.    Herndon,    32   Tex. 

103  Mass.  21 ;  Moore  v.  Moore,  47  N.  390  ;  Jacobs  v.  Cunningham,  32  Tex. 

Y.  468;  Long  v.  Spencer,  78  Penn.  St.  774. 

303;  Reis  17.  Hellman,  25  Oh.  St.  180.  *  Rees   v.  Jackson,    64    Penn.    St. 

Infra,  §  1124.  486. 

2  Edeck  V.  Ranuer,  2  Johns.  423  ;  ^  Humphreys  v.  Wilson,  43  Miss. 
Foster  j;.  Holley,  49  Ala.  593;  Frazer  328. 

V.  Robinson,  42  Miss.  121  ;  Morris  v.  ^  Long   v.    Spencer,    78   Penn.   St. 

McMorris,  44  Miss.  441;  Waterbury  303. 

V.  McMillan,  46  Miss.  635;  Vaughan  ''  Infra,  §  1313. 

V.  O'Brien,  39  How.  (N.  Y.)  Pr.  515;  »  See  supra,  §  314. 

Long  V.   Spencer,  78  Penn.  St.  303  ; 

662 


CHAP.  IX.]  DOCUMENTS  :   FORMALITIES   OF.  [§  700. 

another  state  is  produced  in  evidence,  it  is  never  rejected  because 
such  a  kind  of  evidence  is  inadmissible,  though  the  external  form 
of  the  instrument,  and  the  solemnities  relating  to  it,  may  be 
made  the  subject  of  examination.  But  before  this  examination 
can  be  instituted,  or  the  written  instrument  be  received  in  evi- 
dence, a  burden  lies  on  the  party  producing  it  to  show  that  the 
instrument  has  been  executed,  or  is  in  conformity  with  the  law  of 
the  place  in  which  it  was  written.  By  what  means  this  burden 
of  proof  shall  be  discharged  is  a  question  for  the  lex  fori  to  de- 
cide." 1  In  other  words,  the  judex  fori  is  to  determine,  by  the 
lex  fori,  whether  the  instrument  was  duly  executed  according  to 
the  law  of  the  place  of  execution.  In  our  own  practice,  the 
judex  fori,  when  the  foreign  jurisprudence  is  homogeneous  with 
the  domestic,  may  presume  identity,  so  far  as  to  dispense  with 
specific  proof  of  the  foreign  law.  But  when  the  two  jurispru- 
dences are  not  homogeneous,  then  the  foreign  jurisprudence  must 
be  distinctively  proved.^ 

"  When  the  place  of  execution,"  says  Sir  R.  Phillimore,^  "  is 
once  determined,  the  law  of  that  place  ought  to  govern  both  the 
question  of  the  external  formalities,  and  the  question  of  the  au- 
thenticity of  the  act  or  instrument :  II  est  du  droit  des  gens  que 
ce  qui  est  authentique  dans  un  pays  le  soit  cJiez  toutes  les  nations.^ 
In  accordance  with  the  principle  which  has  been  stated,  an  Eng- 
lish court  has  holden,  that  an  erasure  in  a  foreign  aflidavit  in  the 
recital  of  a  death,  the  certificate  of  which  was  proved  as  an  ex- 
hibit, was  immaterial,  notwithstanding  the  notary,  before  whom 
the  affidavit  was  sworn,  had  not  affixed  his  initials  to  the  erasure  ; 
and,  in  a  case  in  which  it  was  proved  that  the  practice  of  verify- 
ing the  mark  of  a  marksman  in  an  affidavit  sworn  abroad  did 
not  require,  as  in  this  country,  the  notary  to  insert  in  the  jurat 
that  the  '  witness  saw  the  deponent  make  his  mark,'  it  was  holden 
that  the  omission  of  these  words  was  immaterial."  ^ 

Savigny,  whose  authority  in  this  respect  is  in  Germany  deserv- 

1  Pliillirnore  Int.  L.  iv.  G54.     See,         ^  Supra,  §  314  et  seq. 
also,  P.  Voet,  x.  §  8;  Bouliicr,  ch.xxi.         «  Phill.  Int.  Law,  iv.  659. 
Nos.  205,  206  ;  Hertius,  iv.  67;  Mitter-         *  Foelix,  §  226. 

maicr,  Ini.  Arcliiv.  f.  d.  Civil  Praxis,         ^  Ibid.,  citing  Savage  v.  Hutchinson, 

13,  p.  300;  Walter,  1).  Privatr.  §  44  ;  3   Eq.  Rep.  (1853)  368;  ^\  C.  24  L. 

Bar,  §  123;  Story  Confl.  of  L.  §§  352,  J.  Ch.  232. 


565. 


663 


§  701.]  THE   LAW   OF   EVIDENCE.  [BOOK  11. 

edly  high,  holds  that  merchants'  book  accounts  are  to  be  judged 

by  the  law  of  the  place  where  they  are  kept,  as  being 

view  as  to   inseparably  connected  with  the  juridical  act  itself.    The 

merchants'     a        .  ,  ,  i         i      i  •  i  i 

book  ac-  foreigner,  he  also  argues,  who  deals  with  a  merchant, 
in  a  place  where  merchants'  books  are  received  as 
proof  of  a  sale,  subjects  himself  to"  the  local  law.i  Nor  is  this 
position  without  great  strength  ;  for,  in  selling  goods,  the  vendor 
views  the  security  given  as  part  of  the  contract,  and  this  security 
his  books  ai"e.  If  the  vendee  objects  to  them,  he  should  do  so  at 
the  time,  so  that  some  other  security  should  be  substituted.  So 
has  it  been  judicially  decided  by  the  court  of  appeals  at  Cassel.^ 
On  the  other  hand,  when  the  method  of  proving  such  books 
comes  up,  the  questions  whether  the  vendor's  own  oath  is  enough, 
whether  the  book  was  kept  with  business  accuracy,  and  whether 
the  entries  were  made  with  sufficient  freshness,  seem  clearly  mat- 
ters of  process,  to  be  determined  by  the  lex  fori. 

Judge  Story  touches  this  point,  but  leaves  it  open.  "  Sup- 
pose," he  says,  "  that  the  books  of  accounts  of  merchants,  which 
(as  is  well  known)  are  by  the  laws  of  some  states  admissible,  and 
by  those  of  other  states  inadmissible,  as  evidence,  are  offered  in 
the  forum  of  the  latter  to  establish  debts  contracted  in  the  former  ; 
ought  they  to  be  rejected  ?  "  ^  And  he  speaks,  in  a  note,  of  the 
opposite  opinions  expressed  on  this  point  by  the  old  jurists,  ap- 
parently, however,  inclining  to  the  view  of  Paul  Voet,  that  such 
accounts  are  prinid  facie  proof.  Sir  R.  Phillimore  adopts  Savig- 
ny's  views  on  this  point  without  dissent  or  qualification.'^ 

§  701.  It  does  not  follow  that  because  a  document  is  signed 
Identity  of  A.  B.,  a  particular  A.  B.,  who  is  sued,  is  the  signer  of 
signer' of  the  document.  Even  supposing  the  name  attached  to 
must"be°'  ^^®  document  to  be  genuine  and  not  assumed,  there 
proved.  may  be  several  persons  of  the  same  name,  and  the  per- 
son sued  may  not  be  the  person  who  signed.  Hence  in  such 
case  there  must  be  some  kind  of  identification  of  the  signer.^ 
Thus  where  a  note  was  signed  Hugh  Jones,  at  Anglesea,  Eng- 
land, and  it  appeared  in  evidence  that  there  were  several  persons 
of  the  name  of  Hugh  Jones  at  Anglesea ;  a  plaintiff,  who  sued  a 

1  Savigny,  Rom.  Recht,  viii.  §  381.  ^  Phill.  iv.  658. 

2  Ibid.  6  See  infra,  §  739  a. 
8  Confl.  of  Laws,  §  635,  n. 

664 


CHAP.  IX.]      DOCUMENTS  :  PROOF  OF  HANDWRITING. 


[§  '01. 


particular  Hugh  Jones  on  the  note,  without  any  evidence  to  iden- 
tify the  defendant  as  the  particular  Hugh  Jones,  who  signed  the 
note,  was  nonsuited.^  But  where  the  name  is  uncoramon,^  or  where 
there  is,  to  adopt  the  language  of  Parke,  B.,  in  another  case, 
"  similarity  of  name  and  residence,  or  similarity  of  name  and 
trade,"  ^  then  there  is  enough  to  throw  the  burden  of  disproving 
identity  on  the  defendant.*  And  it  is  now  held  that  unless  the 
defendant's  signature  is  by  a  mark,'^  or  unless  there  be  evidence, 
as  in  a  case  above  cited,  of  a  name  being  common  in  a  country, 
or  unless  there  be  some  other  circumstance  calculated  to  throw 
confusion  on  identity,  mere  identity  of  name  is  sufficient  for  a 
primd  facie  case.^  But  some  proof  of  identity  there  must  be, 
though  such  proof  be  the  mere  similarity  of  name  just  noted.^ 


1  Jones  V.  Jones,  9  M.  &  W.  75.  See, 
also.  Louden  v.  Walpole,  1  Ind.  319. 

2  Greenshields  v.  Crawford,  9  M. 
&  W.  314;  and  see  other  cases  cited 
infra,  §  1273. 

8  Smith  I'.  Henderson,  9  M.  &  W. 
801.  See,  also,  Russell  v.  Smyth,  9 
M.  &  W.  818  ;  Mooers  v.  Bunker,  29 
N.  H.  420;  Kinney  v.  Flynn,  2  R.  I. 
319.  See  Moss  v.  Anderson,  7  Mo. 
337;  and  cases  cited  infra,  §  1273. 

4  Hanisher  v.  Kline,  57  Penn.  St. 
397  ;  Russell  v.  Tunno,  11  Rich.  (S. 
C.)  303;  Moss  v.  Anderson,  7  Mo. 
337.     Infra,  §§  739  fl,  1273. 

^  Whitelockc  v.  Musgrove,  1  C.  & 
M.  511;  3  Tyr.  541. 

«  Infra,  §  1273.  Sewcll  v.  Evans, 
4  Q.  B.  626;  3  G.  &  D.  604.  See 
Marietta  v.  Wolf  hagen,  2  C.  &  K.  744. 

'  See  infra,  g  739  a. 

In  Taylor's  Evidence,  §  1657,  we 
have  the  following  remarks  on  the 
point  of  identity:  "  It  may,  however, 
here  be  observed  that  the  description 
in  the  declaration  cannot  properly  be 
said  to  prove  the  identity  of  the  de- 
fendant. The  question  is,  who  was 
served  with  the  writ,  and  who  has 
pleaded  to  the  action  ?  and  it  is  ob- 
vious that  no  description,  which  the 
plaintiff  chooses  to  introduce  into  his 


statement  of  his  own  case,  can  in 
strictness  answer  this  question,  or 
affect  the  defendant's  interests.  This 
remark  is  made,  because  in  the  case 
of  Greenshields  v.  Crawford,  9  M.  & 
"VV".  314,  the  court  appears  to  have 
acted  upon  a  similar  mistake.  The 
decision  in  Smith  v.  Henderson,  9  M. 
&  W.  818,  was  right,  not  because  the 
defendant  was  described  by  the  plain- 
tiff as  a  pilot,  but  because  the  acci- 
dent was  proved  to  have  been  caused 
by  a  pilot  named  Henderson,  and  a 
person  answering  that  name  and  de- 
scription was  j>re.se/i<  in  court,  and 
might  fairly  be  presumed  to  be  the 
same  Mr.  Henderson  who  had  pleaded 
to  the  action.  In  another  case,  in 
which  a  witness,  called  to  prove  the 
defendant's  handwriting,  had  corre- 
sponded with  a  person  bearing  his 
name,  who  dated  his  letters  from 
Plymouth  Dock,  where  the  defendant 
resided,  and  where  it  appeared  that 
no  other  person  of  the  same  name 
lived,  the  evidence  of  identity  was  held 
to  be  sufficient  ;  Harrington  t'.  Fry, 
Ry.  &  M.  90,  per  Best,  C.  J.  ;  and 
in  Warren  v.  Sir  J.  C.  Anderson, 
Bart.,  8  Scott,  384,  where  the  only 
proof  of  the  defendant's  signature  to 
a  bill  was  given  by  a  clerk  of  Messrs. 

665 


§  703.] 


THE    LAW    OF   EVIDENCE. 


[book  n. 


Document 
by  afiCPnt 
cannot  be 
proved 
without 
proving 
power  of 
agent. 


§  702.  As  we  have  already  incidentally  noticed,  until  a  power  is 
shown  in  an  agent  to  execute  a  deed,  or  other  document, 
such  document  cannot  be  put  in  evidence.  Authority 
from  the  principal  to  the  agent  must  be  shown  as  a  con- 
dition precedent  to  the  agent's  act  being  proved.^  By 
the  practice  of  most  jurisdictions,  however,  when  a  suit 
is  brought  on  a  note  signed  by  an  alleged  agent,  the 

plaintiff  is  not  obliged  to  prove  the  authority  of  the  agent,  unless 

it  is  denied  under  oath  by  the  defendant.^ 

§  703.  It  is  noticed  in  another  section  that  the  handwriting 

Documents    ^f  attesting  witnesses,  after  the  lapse  of  thirty  years, 

vears  o'/r"^  need  not  be  proved.^  The  same  rule  is  applied  as  to 
documents  unattested  by  witnesses,  and  which  are  taken 
from  proper  depositaries.^     Thus  in  a  leading  English 


prove 
them- 
selves 


Coutts,  who  stated  that  two  years  be- 
fore the  trial  he  saw  a  person,  whom 
he  did  not  know,  but  who  called  him- 
self Sir  J.  C.  Anderson,  Bart.,  sign 
his  name;  that  he  had  since  seen 
checks  similarly  signed  pass  through 
the  banking  house,  and  that  he  thought 
the  handwriting  was  the  same  on  the 
bill  ;  the  court  held  that  the  evidence, 
weak  as  it  confessedly  was,  might  be 
submitted  for  the  consideration  of  the 
jury. 

1  Horsley  v.  Rush,  7  T.  R.  209; 
Sanderson  v.  Bell,  2  C.  &  M.  313; 
Nicholson  v.  Patton,  2  Cranch  C.  C. 
164  ;  James  v.  Gordon,  1  Wash.  C.  C. 
333;  Atkinson  v.  St.  Croix,  2-1  Me. 
171;  Trull  u.  True,  33  Me.  367;  Em- 
erson V.  Providence  Co.  12  Mass.  237; 
Lamb  v.  Irwin,  69  Penn.  St.  436; 
Mech.  Bk.  v.  Nat.  Bk.  36  Md.  5; 
Yarborough  v.  Beard,  1  Tayl.  N.  C. 
25  ;  Wahrendorff  v.  Whittaker,  1  Mo. 
205;  Elliott  v.  Pearce,  20  Ark.  508; 
CarnalljJ.  Duvall,  22  Ark.  136;  Hughes 
V.  Ho  liday,  3  G.  Greene,  30;  Lowry 
r.  Harris,  12  Minn.  255  ;  Gashwiler 
V.  Willis,  33  Cal.  11;  Wharton  on 
Agency,  §  48  et  seq. 

2  Bowen  v.  De  Lattre,  6  Whart.  R. 
430;  Delahay  v.   Clement,  3  111.  575; 

666 


Thompson  v.  Abbott,  11  Iowa,  193; 
Brashear  i'.  Martin,  25  Tex.  202. 

8  See  supra,  §§  194-5  ;  infra,  §  733. 

*  Doe  r.  Rawlings,  7  East,  279;  Doe 
V.  Sampton,  8  Ad.  &  El.  154  ;  Evans 
V.  Rees,  10  Ad.  &  El.  154;  Doe  v. 
Phillips,  8  Q.  B.  158  ;  Goodwin  v. 
Jack,  62  Me.  414;  Willets  v.  Mon- 
dlebaum,  28  Mich.  521;  Johnson  v. 
Shaw,  41  Tex.  428.  See  fully  cases 
cited  supra,  §§  194-9,  and  infra,  § 
732. 

"  Courts  have  felt  obliged  from  ne- 
cessity to  depart  from  the  strict  rules 
of  evidence  in  the  admissions  of  ancient 
writings,  documents,  books,  and  rec- 
ords, to  prove  the  existence  of  the 
facts  they  recite.  The  rule  of  evidence 
requiring  the  testimony  of  the  lawful 
custodian  of  books  of  record  ofTered 
in  evidence,  that  they  are  of  the  de- 
scription claimed,  before  they  are  ad- 
missible, has  repeatedly  been  relaxed 
in  the  case  of  ancient  books  of  record 
of  proprietors  of  land.  In  such  in- 
stances, such  books  have  been  held 
to  prove  themselves.  When  ancient 
books,  purporting  to  be  the  records 
of  such  proprietary,  contain  obvious 
internal  evidence  of  their  own  verity, 
and  there  is  no  evidence  of  the  pres- 


CHAP.  IX.]  .  DOCUMENTS  :    PROOF    OF   HANDWRITING.  [§  703. 

case,^  a  paper  was  received  which  purported  to  be  a  state- 
ment by  a  confidential  agent  to  a  former  tenant  for  life,  of 
rent  reserved  in  1728,  and  as  such  had  been  indorsed  by  the 
latter.  This  was  held  to  be  evidence,  in  1806,  of  the  fact,  for  the 
plaintiff,  a  tenant  in  tail,  to  whom  it  had  been  handed  down  with 
other  muniments  of  title,  to  show  that  the  rent  reserved  by  a 
tenant  for  life,  who  had  immediately  preceded  the  plaintiff,  was 
less  than  the  rent  originally  reserved.  "  Ancient  deeds,"  said 
Lord  Ellenborough,  "  proved  to  have  been  found  amongst  deeds 
and  evidences  of  land,  may  be  given  in  evidence,  although  the 
execution  of  them  cannot  be  proved  ;  and  the  reason  given  is, 
'  that  it  is  hard  to  prove  ancient  things,  and  the  finding  them  in 
such  a  place  is  a  presumption  they  were  fairly  and  honestly  ob- 
tained, and  reserved  for  use,  and  are  free  from  suspicion  of  dis- 
lionesty.'  This  paper,  therefore,  having  been  found  amongst  the 
muniments  of  the  family  ....  accredited  ....  and  pre- 
served ....  we  think  that  it  was  evidence  to  be  left  to  the  jury 
of  the  amount  of  the  ancient  rent  at  the  time  it  bears  date."  ^ 
So  in  a  subsequent  authoritative  ruling,^  Tindal,  C.  J.,  said  : 
"  The  result  of  the  evidence,  upon  the  bill  of  exceptions,  we  think 

ent  existence  of  the  proprietary  or  of  forged,  or  that  there  were  proofs  which 

any   person   representing   it,    or   any  would  connect  the  preparation  of"  the 

clerk   or  other  person  authorized  to  documents  with   a   specific  era;   that 

keep  the  records,  they  are  admissible  they  were  well  guarded  was  no  proof, 

in  evidence  without  proof  of"  the  legal  unless  the   guardians  were    called  as 

organization  of  the  proprietary,  or  of  witnesses,  or  unless  it  should  appear 

its  subsequent  meetings."     Goodwin  that  the  guardians  were  not  only  vigi- 

V.  Jack,  G2  Me.  416,  Dickerson,  J.  lant   but   faithf"ul.     It   was    therefore 

The  Roman  law  recognized  no  pre-  held  that  the  law  would   interpose  no 

sumption  of  law  in  favor  of  the  gen-  arbitrary  presumjition  in  favor  of  the 

uineness  of   documents,  however  an-  genuineness  of  such  instruments,  and 

cient  or  well  guarded.    The  jurist  was  it  was  required  that  persons  offering 

to   inspect  such   documents  with   the  such  instruments  should  give  at  least 

same  eye  as  did  the  historian.     They  jon/zict/acie  proof  of  genuineness.  The 

might   be   ancient,    and    they    might  question  was  one  of  fact,  open  to  all 

have   been    well   guarded  ;    but    they  the   presumptions    of    fact    which    a 

might  on  their  face  contradict  other  sound   and  free   logic  would   in  such 

monuments   of    uncjuestionable   accu-  cases    apply.     Sec    Endemann's    Be- 

racy  and  genuineness  ;  they  might  on  weislehre,   258. 

their  face  bear  plain  marks  of  falsifi-  ^  Roe  v.  Rawlings,  7  East,  279. 

cation.     That  they  were  old  did  not  ^  Powell's  Evidence,  4th  ed.  167. 

tell  in  their  favor,  unless  it  could  be  *  Bishop   of   Mcath   v.  Marquis  of 

shown  that  the  marks  of  age  were  not  Winchester,  3  Bing.  (N.  C.)  183. 

GG7 


§  703.] 


THE   LAW    OF   EVIDENCE. 


[book  II. 


is  this:  that  these  documents  were  -  found  in  a  place  in  which, 
and  under  the  care  of  persons  with  whom,  papers  of  Bisliop  Dop- 
ping  might  naturally  and  reasonably  be  expected  to  be  found, 
and  that  is  precisely  the  custody  which  gives  authenticity  to  doc- 
uments found  within  it ;  for  it  is  not  necessary  that  they  should  be 
found  in  the  best  and  most  proper  place  of  deposit."  ^    It  should 

^  "  If  documents,"  so  the  argu-  all  held  to  be  inadmissible,  the  pos- 
session of  the  documents  being  uncon- 
nected with  the  interests  in  the  prop- 
erty. On  the  other  hand,  an  old 
chartulary  of  the  dissolved  abbey  of 
Glastonbury  was  held  to  be  admissi- 
ble, because  found  in  the  possession  of 
the  owner  of  part  of  the  abbey  lands, 
though  not  of  the  principal  proprietor. 
This  was  not  the  proper  custody, 
which,  as  Lord  Redesdale  observed, 
would  have  been  the  Augmentation 
Office  ;  and,  as  bteween  the  diflfer- 
ent  proprietors  of  the  abbey  lands, 
it  might  have  been  more  reasonably 
expected  to  have  been  deposited  with 
the  largest;  but  it  was,  as  the  court 
argued,  a  place  of  custody  where  it 
might  be  reasonably  expected  to  be 
found.  So,  also,  in  the  case  of  Jones  v. 
Waller,  the  collector's  book  would  have 
been  as  well  authenticated  if  produced 
from  the  custody  of  the  executor  of  the 
incumbent  or  his  successor,  as  from 
the  hands  of  the  successor  of  the  col- 
lector. Upon  this  principle,  we  think 
the  case  stated  for  the  opinion  of 
counsel,  purporting  to  be  stated  on  the 
part  of  Bishop  Dopping,  and  found 
in  the  place  and  in  the  custody  before 
described,  was  admissible  in  evidence. 
It  was  a  document  which  related  to 
the  private  interests  of  the  bishop,  at 
the  time  it  was  stated,  for  it  bears  date 
in  1695,  about  which  time,  it  appears 
from  other  facts  found,  that  Barry,  the 
late  incumbent,  was  dead,  and  that 
before  1697,  Bishop  Dopping  collated 
his  own  son.  It  related,  thei-efore,  to 
a  real  transaction  which  took  place  at 
the  time ;  and  although  it  might  be 


ment  continues,  "continued  in  such 
custody,  there  never  would  be  any 
question  as  to  their  authenticity,  but 
it  is  when  documents  are  found  in 
other  than  the  proper  place  of  de- 
posit that  the  investigation  commences, 
whether  it  Avas  reasonable  and  natural, 
under  the  circumstances  in  the  partic- 
ular case,  to  expect  they  should  have 
been  in  the  place  where  they  were  act- 
ually found;  for  it  is  obvious  that 
whilst  there  can  be  only  one  place  of 
deposit  strictly  and  absolutely  prop- 
er, there  may  be  various  and  many 
that  are  reasonable  and  probable, 
though  differing  in  degree;  some  be- 
ing more  so,  some  less;  and  in  those 
cases  the  proposition  to  be  determined 
is,  whether  the  actual  custody  is  so 
reasonably  and  probably  to  be  ac- 
counted for,  that  it  impresses  the 
mind  with  the  conviction  that  the  in- 
strument found  in  such  custody  must 
be  genuine.  That  such  is  the  chai*- 
acter  and  description  of  the  custody, 
which  is  held  sufficiently  genuine  to 
render  a  document  admissible,  appears 
from  all  the  cases.  On  the  one  hand, 
old  grants  to  abbeys  have  been  re- 
jected as  evidence  of  private  rights, 
where  the  possession  of  them  has  ap- 
peared altogether  unconnected  with 
the  persons  who  had  any  interest  in 
the  estate.  Thus,  a  manuscript  found 
in  the  Heralds'  office,  enumerating  the 
possessions  of  the  dissolved  monastery 
of  Tutbury,  a  manuscript  found  in  the 
Bodleian  Library,  Oxford,  and  a  grant 
to  a  priory  brought  from  the  Cottonian 
MSS.  in  the  British  Museum,  were 

668 


CHAP.  IX.]      DOCUMENTS  :  PROOF  OF  HANDWRITING. 


[§  704. 


be  remembered  at  the  same  time  that  while  a  particular  link  in 
a  title  can  be  thus  proved,  it  is  necessary  to  connect  such  link 
with  the  prior  title.  A  deed  from  an  administrator,  the  deed 
being  thirty  years  old,  may  be  put  in  evidence,  if  taken  from  the 
proper  depositary,  without  proving  signature,  but  not  without 
proving  some  title  in  the  administrator  to  sell.^ 

§  704.  Where,  for  the  purposes  of  verification,  it  is  impor- 
tant to  go  back  beyond  thirty  years,  a  person  who  Such  docu- 
is  familiar  (from  having  had  occasion  to  examine  old  be^ygrifkcL 
deeds  and  other  papers  indisputably  traceable  to  the  by  experts 
party  whose  signature  is  contested)  with  the  handwriting  in 
question  may  be  permitted  to  testify  as  to  the  genuineness  of  a 
dbcument.2  Thus  when,  in  the  Fitz waiter  Peerage  case,^  it  was 
material  to  determine  whether  a  family  pedigree,  produced  from 
the  proper  custody,  and  purporting  to  have  been  made  some 
ninety  years  before  by  an  ancestor  of  the  claimant,  was  written 
by  him,  and  when  the  family  solicitor  was  called,  and  it  was 
shown  that  he  had  acquired  a  knowledge  of  the  ancestor's  writing, 


said  to  have  related  in  some  degree  to 
the  see,  for  the  right  of  collation  was 
claimed,  as  of  an  advowson  granted  to 
the  see;  yet  it  is  manifest  this  case 
had  been  stated  with  reference  to  the 
private  interests  of  the  bishop  in  the 
particular  avoidance,  and  that  it  was 
more  reasonable  to  expect  it  to  be  pre- 
served with  his  private  papers,  and 
family  documents,  than  in  the  public 
registry  of  the  diocese.  But  even  con- 
sidered as  a  document  belonging  to 
the  see,  it  was  not  unreasonable  that 
it  should  have  been  found  in  the 
bishop's  mansion  -  house  ;  for,  upon 
the  evidence,  there  is  only  one  single 
ecclesiastical  record  preserved  in  the 
registry  of  the  diocese  of  Meath  of  an 
earlier  date  than  1717;  and,  on  the 
other  hand,  the  case  and  grant  are 
found  in  the  same  parcel  with  several 
papers  relating  to  the  see  of  Meath, 
and  in  the  same  room  were  several 
visitation  books  of  the  diocese  and 
other  papers  relating  to  the  see." 


"It  appears  from  this  case,"  com- 
ments Mr.  Powell,  "  that  it  is  not 
necessary  that  the  custody  should  be 
that  which  is  strictly  proper  ;  it  is 
sufficient  if  it  be  one  which  may  be 
reasonably  and  naturally  explained ; 
Doe  V.  Sampter,  8  Ad.  &  El.  154; 
and  one  which  affords  reasonable  as- 
surance of  the  authenticity  of  the  doc- 
ument. Per  Coleridge,  J.,  Doe  v. 
Phillips,  8  Q.  B.  158.  But  it  is  not 
sufficient  to  produce  the  documents 
without  calling  a  witness  to  prove  the 
custody  from  which  they  come.  Evans 
V.  Rees,  10  Ad.  &  El.  154."  Powell's 
Evidence,  4th  ed.  1G9. 

1  Fell  V.  Young,  G3  111.  106. 

2  Fitzwalter  Peerage  case,  10  CI.  & 
Fin.  19.3  ;  Cantey  i^.  Piatt,  2  McCord 
(S.  C),  260;  Jackson  v.  Brooks,  8 
Wend.  426;  Smith  i'.  Rankin,  20  111.14; 
Sweig.art  r.  Richards,  8  IVnn.  St.  436. 

8  Fitzwalter  Peonage,  10  CI.  &  Fin. 
193.     Sec  Cr.awford  &  Lindsay  Peer- 
age, 2  II.  of  L.  Cas.  556-58. 
669 


§  705.]  THE  LAW   OF   EVIDENCE.  [BOOK  II. 

from  having  had  occasion  at  different  times  to  examine,  in  the 
course  of  his  business,  many  deeds  and  other  instruments  pur- 
porting to  have  been  written  or  signed  by  sucli  ancestor,  the 
court  held  this  witness  competent  to  prove  the  handwriting  of 
the  pedigree.  Similar  proof  was  admitted  in  a  case^  of  pedigi-ee, 
where  the  genuineness  of  a  marriage  certificate,  eighty-five  years 
old,  was  in  issue,  and  where  the  court  of  queen's  bench  held  that 
it  was  sufficient,  in  order  to  establish  the  signature  of  "  W. 
Davies,"  the  curate  signing  the  certificate,  to  show  by  the  parish 
clerk,  that  in  the  course  of  his  official  duty  he  had  acquired 
a  knowledge  of  the  handwriting  of  Mr.  Davies,  from  various 
signatures  in  the  original  register,  and  that  the  signature  was 
genuine. 2 

§  705.  It  has  sometimes  been   said   that  the   strongest  testi- 
Hand-  mony  to  be  had  to  the  genuineness  of  handwriting  is 

may  be  that  of  the  Writer  himself.^  This,  however,  is  not 
the  writer  necessarily  the  case.  I  may  remember  having  written 
himself,  or   or  signed  a  particular  document,  and  this  recollection, 

his  adraij-  ...  .    . 

sion.  taken  in  connection  with    my  recognition  of  my  own 

signature,  forms  strong  evidence.  But  it  by  no  means  follows 
that  I  am  the  person  most  able  to  distinguish  my  own  writing 
from  a  skilful  forgery.  Those  who  are  experts  in  respect  to  hand- 
writing are  able  to  observe  delicate  shades  which  may  be  imper- 
ceptible to  me,  and  to  apply  tests  of  which  I  may  be  ignorant. 
So  a  rude  penman  may  be  unable  to  frame  his  signature  in  such 
a  way  as  to  present  to  him  any  positive  differentia.  At  the 
same  time,  the  belief  of  persons  accustomed  to  use  their  pens 
with  ordinary  frequency,  as  to  the  genuineness  of  their  signa- 
ture, is  entitled  to  great  consideration ;  and  it  is  one  of  the 
benefits  of  the  late  statutes  making  parties  witnesses,  that  the 

^  Doe  V.  Davies,  10  Q.  B.  314.  6),   held  tliat  expert  testimony,    not 

*  In  the  Fitzwalter  Peerage  case,  derived   from    business    dealing   with 

10  CI.  &  Fin.  193,  the  house  of  lords,  such  documents,  but  from  mere  study, 

qualifying  in  this  respect  earlier  rul-  in  view  of  the  litigation,  of  the  signa- 

ings   (see   Sparrow  v.  Tarrant,    2   St.  tures,  was  inadmissible  on  the  issue 

Ev.   517,  n.  e,  per  Holroyd,  J.;  Doe  of  genuineness.     See,  however,  §  718, 

V.  Lyne,  2  Ph.Ev.  258,  n.  1,  per  Ibid.;  contra  ;  ^weigart  v.  Richards,  8  Penn. 

Beer  v.  Ward,  cited  Ibid,  per  Dallas,  St.   436  ;  Bradt  v.    Brooks,  8  Wend. 

C.  J.,  and  Ld.  Tenterden;  Anon,  per  426;  S.  C.  15  Wend.  112. 
Ld.  Hardwicke,   cited  B.   N.  P.  236,         »  Taylor's  Evidence,  §  1660. 
670 


CHAP.  IX.]  DOCUMENTS  :   PROOF    OF   HANDWRITING.  [§  706. 

testimony  of  parties  to  their  own  signature  can  now  be  obtained 
by  the  ordinary  common  law  processes.^  Much  less  we'ght, 
however,  belongs  to  the  casual,  extra-judicial  admission  of  a  per- 
son that  a  certain  writing  is  his.  To  make  such  an  admission 
receivable,  it  must  appear  that  the  writing  was  shown  to  him ; 
and  even  then  he  may  show  that  his  admission  was  founded  on 
mistake.  But,  in  any  view,  such  an  admission  is  primd  facie 
evidence.2  Authority  in  an  agent  to  sign  the  principal's  name 
may  in  like  manner  be  proved  by  the  principal's  admission.^ 

§  706.  In  England,  by  statute,  a  person  whose  handwriting  is 
in  dispute,  may  be  called  upon  by  the  judge  to  write  party  may 
in  his  presence,  and  such  writing  may  be  compared  ^^^^  ^^ 
with  the  writing  in  litigation.^  In  this  country  simi-  "*^"'^^- 
lar  statutes  have  been  adopted.  No  doubt  occasional  advantages 
may  flow  from  the  application  of  this  test.^  "  At  the  Greenwich 
county  court,"  so  Mr.  Taylor  tells  us,^  "  a  plaintiff  denied  most 
positively  that  a  receipt  produced  was  in  his  handwriting.  It 
was  thus  worded :  '  Received  the  Hole  of  the  above.'  On 
being  asked  to  write  a  sentence  in  which  the  word  '  whole '  was 
introduced,  he  took  evident  pains  to  disguise  his  writing,  but 
he  adopted  the  above  j^honetio  style  of  spelling,  and  also  per- 
sisted in  using  the  capital  H.  On  being  subsequently  threatened 
with  an  indictment  for  perjury,  he  absconded."     The  practice 

1  See  infra,  §  706.  for  the  purpose  of   showing  that  he 

2  Infra,  §§  725,  1089-1095.  had  authorized  it   to  be  done,   from 
8  "  Evidence  was  also  given,  against     which  the  jury  might  infer  or  presume 

the  defendant's  exception,  tending  to  an  impUed  authority  to  sign  his  name 

prove  that  he  had  recognized  the  va-  to  the  note  in  question,  if  as  the  judge 

lidityand  his  liability  for  the  payment  at  the  circuit  instructed  the  jury,  he 

of  other  notes  to  which  his  name,  in  '  was  in  the  habit  of  recognizing  these 

conjunction  with  that  of  his  co-defend-  notes   which  his   son   thus    signed  in 

ant  (who  was  his  son),  purported  to  his  name  as  authorized  and  genuine 

be  signed,  but  which  he  himself  had  notes.'       See,    also,    Cunningham    v. 

not  signed,  after  full  knowledge   that  Hudson    River    Bank,    21    Wendell, 

the  signature  was   not  in  his   proper  559."    Lott,  Ch.  C,  Hammond  v.  Va- 

handwriting.     This,  within  the  j)rin-  rian,  54  N.  Y.  400. 

ciple  of  the  decisions  in  Weed  v.  Car-  *  See   Devine   v.  Wilson,    10  Moo. 

penter,  4  Wend.  219;  Same  v.  Same,  P.  C.  R.  502;  Cobbett  v.  Kilminster, 

10   Ibid.  404,  was  admissible,  in  con-  4  F.  &  F.  490. 

ncction  with  the  fact  that  his   name  ^  Sec  Chandler   v.    Le   Barron,   45 

was  so  signed  by  his  co-defendant,  or  Me.  534. 

assumed  so  to  have  been,  on  the  trial,  '  Taylor's  Evidence,  §  1G69. 

671 


§  707.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

of  thus  testing  a  party  is  vindicated  by  one  of  the  most  saga- 
cious of  German  jurists,  Mittermaier,  on  grounds  not  only  of 
expediency,  but  of  authority.^  To  the  weight  of  such  evidence, 
however,  rather  than  to  its  admissibihty,  it  may  be  objected  that 
a  person  who  is  called  upon  to  write,  in  a  court-house,  a  piece  for 
judicial  inspection,  may  have  strong  motives  to  modify  his  usual 
style  of  writing,  and  in  any  view,  such  writing  would  be  likely  to 
be  more  formal  and  regular  than,  a  current  business  hand,  and  to 
perplex  rather  than  convince  experts.  Nor  should  it  be  forgot- 
ten that  nervousness,  at  such  a  moment,  might,  especially  with 
women,  subdue  in  the  writing  its  usual  characteristics.  At  the 
same  time,  on  cross-examination  of  a  witness  who  has  denied 
his  signature,  such  a  practice  is  proper  and  efficient.^  But  it 
is  clear  that  a  party  should  not,  on  the  other  hand,  be  per- 
mitted to  manufacture  evidence  for  himself  by  writing  his  name 
as  a  basis  for  a  comparison  of  bands  by  a  jury.^  It  should  be" 
observed  that  evidence  of  handwriting  by  another  is  in  no  sense 
secondary  to  evidence  of  such  handwriting  by  the  writer  him- 
self.* 

§  707.  The  most  direct  way  in  which  one  man  can  become 
Seeino-  a  acquainted  with  the  handwriting  of  another  is  by  see- 
person         ing  s^^g]^  other  person  write.     Yet  we  must  not  be  led 

write  qual-         °  ^ 

ifies  a  wit-   away  by  the  apparent  closeness  of  connection  that  is 
speak  as  to   tlius  involved.     I  may  see  a  person  write  several  times 
'  without  becoming  by  any  means  as  familiar  with  his 

handwriting  as  I  would  be  by  maintaining  with  him  a  pro- 
tracted correspondence.  I  may  watch  him  but  listlessly,  or  at  a 
distance,  as  one  clerk  may  do  another  in  a  counting-room,  with- 
out mastering  the  peculiarities  of  his  penmanship.     Still,  with 

^  See  Nov.  73,  cap.  i.  Chandler  v.  Le  Barron,  45  Me.  534; 

2  "  There  are  cases   to   the   effect  Taylor  on  Evidence,  §  1669."     Ames, 

that,  where  a  witness  has  denied  his  J.,  King  t».  Donahue,  110  Mass.  155. 
signature  to  a  document,  he  may  be        ^  King  v.  Donahue,  110  Mass.  155  ; 

called  upon,  in   cross-examination,  to  but  see  Roe  v.  Roe,  40  N.  Y.  Sup. 

write  his  name  in  open  court,  in  order  Ct.  1 . 

that  the  jury  may  compare  such  writ-         *  R.  v.  Hazy,  2   C.  &  P.  458;  R.  v. 

ing  with  the  controverted  signature;  Hurley,  2  M.  &  Rob.  473;  R.  v.  Ben- 

but   this   is   merely  as  a  part  of  the  son,  2  Camp.  508;  Smith  v.  Prescott, 

cross-examination,  and  for  the  purpose  17  Me.  277;  Ainsworth  v.   Greenlee, 

of  contradicting  the  witness.     Doe  v.  1  Hawks,  190;  McCaskle  v.  Amarine, 

Wilson,    10   Moore  P.    C.   502,    530;  12  Ala.  17.     Supra,  §  394. 

672 


CHAP.  IX.] 


PROOF   OF   HANDWRITING. 


[§  T07. 


all  these  qualifications,  the  "  presumption  ex  visu  scriiJtionis^^''  as 
Mr.  Bentham  calls  it,^  not  onl}^  lends  to  such  testimony  much. 
weight,  but  makes  it  technically  primary .^  It  has,  however, 
been  said  that  such  knowledge  of  handwriting,  in  cases  where 
forgery  is  charged,  must  be  before  the  commencement  of  the 
suit;  for  it  is  argued  that  after  a  suit  involving  forgery  has 
been  instituted,  a  party  is  under  too  great  a  temptation  to 
make  evidence  for  himself  to  justify  dependence  on  his  sam- 
ples of  his  penmanship.  But  this  reasoning,  as  giving  an 
absolute  rule  as  to  time,  cannot  now  prevail  in  those  states 
in  which  by  statute   interest   is   for  the   jury  and   not  for  the 


»  Jud.  Evid.  iii.  598. 

2  R.  V.  Tooke,  25  How.  St.  Tr.  71; 
Garrcls  v.  Alexander,  4  Esp.  37;  Ea- 
gleton  V.  Kingston,  8  Ves.  473  ;  Lewis 
r.  Sapio,  M.  &  M.  39  ;  Doe  v.  Sucker- 
more,  5  A.  &  E.  730  ;  George  v.  Sur- 
rey, M.  &  M.  51G  (a  case  of  a  mark); 
U'  S.  v.  Prout,  4  Cranch  C.  C.  301  ; 
Hopkins  v.  Megquire,  35  Me.  78 ; 
Rideout  v.  Newton,  17  N.  H.  71  ; 
Hoitt  V.  Moulton,  21  N.  H.  586;  Bow- 
man V.  Sanborn,  25  N.  H.  87  ;  Keith 
V.  Lothrop,  10  Gush.  453;  Magee  i'. 
Osborn,  32  N.  Y.  669;  Hammond  v. 
Varian,  54  N.  Y.  398  ;  Hartung  v. 
People,  4  Park.  C.  R.  319;  Com.  u 
Smith,  6  Serg.  &  R.  568;  Edelen  v. 
Gough,  8  Gill,  87;  Smith  r.  Walton, 
8  Gill,  77;  Pepper  v.  Barnett,  22 
Grat.  405  (where  the  witness  only  saw 
the  party  write  once)  ;  State  v.  Hess, 

5  Ohio,  7;  Woodford  v.  McClenahan, 
4  Gilman,  85  ;  Board  v.  Miscnlieimor, 
78  111.  22  ;  Commis.  v.  Hanion,  1  Nott 

6  McC.  554  ;  State  v.  Stalmaker,  2 
Brev.  1 ;  State  v.  Anderson,  2  Bailty, 
565;  Strong  v.  Brewer,  17  Ala.  706 
(case  of  a  mark). 

As  to  familiarity  with  ancient  sig- 
natures, see  supra,  §  704. 

"  Abstractedly  considered,"  says 
Mr.  Best,  "  it  is  clear  that  a  judgment 
respecting  the  genuineness  of  hand- 
writing, based  on  its  resemblance  to, 

VOL.  I.  43 


or  dissimilarity  from,  that  of  the  sup- 
posed writer,  may  be  formed  by  one 
or  more  of  the  following  means:  1st, 
A  standard  of  the  general  nature  of 
the  handwriting  of  the  person  may  be 
formed  in  the  mind,  by  having  on  for- 
mer occasions  observed  the  characters 
traced  by  him  while  in  the  act  of  writ- 
ing, with  which  standard  the  hand- 
writing in  the  disputed  document  may, 
by  a  mental  operation,  be  compared. 
2dly,  A  person  who  has  never  seen 
the  supposed  writer  of  the  document 
write  may  obtain  a  like  standard,  by 
means  either  of  having  carried  on 
written  correspondence  with  him,  or 
having  had  other  opportunities  of  ob- 
serving writing  which  there  was  rea- 
sonable ground  for  presuming  to  be 
his.  3dly,  A  judgment  as  to  the  gen- 
uineness of  the  handwriting  to  a  doc- 
ument may  be  formed,  by  a  compari- 
son instituted  between  it  and  other 
documents  known  or  admitted  to  be  in 
the  handwriting  of  the  party.  These 
three  modes  of  proof,  —  the  admissi- 
bility and  weight  of  which  we  propose 
to  consider  in  their  order,  —  liave  been 
accurately  designated,  respectively  : 
'  Praesumptio  ex  visu  scriptionis ;' 
'  Praesumptio  ex  scriptis  olim  visis  ;  ' 
and  '  Praesumptio  c.x  comparationo 
scriptorum,'  or  'ex  scrijjto  nunc  vise' 
3  Bonth.  Jud.  Ev.  598,  599." 

673 


§  708.]  THE   LAW   OF   EVIDENCE.  [bOOK  II. 

court,  and  parties  are  admitted  to  testify  on  their  own  belialf. 
Nor,  on  principle,  can  it  be  admitted  as  an  inflexible  test 
that  evidence  which  a  party  has  the  opportunity  of  moulding 
in  his  own  interests  is  to  be  ruled  out.  If  all  such  evidence 
is  to  be  excluded,  comparatively  little  evidence  could  be  let 
in.i  At  the  same  time,  as  has  been  well  observed,^  the  knowd- 
edge  must  not  have  been  acquired  or  communicated  with  a 
view  to  the  specific  occasion  on  which  the  proof  is  offered.^ 
Thus  in  a  case  involving  the  genuineness  of  the  defendant's 
signature  to  a  note,  Lord  Kenyon  rejected  the  evidence  of  a 
witness  who  stated  that  he  had  seen  the  defendant  write  his 
name  several  times  before  the  trial,  he  having  written  it  for 
the  purpose  of  showing  to  the  witness  his  true  manner  of 
writing  it,  that  the  witness  might  be  able  to  distinguish  it 
from  the  pretended  acceptance  to  the  bill ;  and  the  reason 
given  was,  that  the  defendant  might  through  design  have  writ- 
ten differently  from  his  common  mode  of  writing  his  name.* 
So  where,  on  an  indictment  for  sending  a  threatening  letter,  the 
only  witness  called  to  prove  that  the  letter  was  in  the  hand- 
writing of  the  accused  was  a  policeman,  who,  after  the  letter 
had  been  received  and  suspicions  aroused,  was  sent  by  his  in- 
spector to  the  accused  to  pay  him  some  money  and  procure  a 
receipt,  in  order  thus  to  obtain  a  knowledge  of  his  handwrit- 
ing by  seeing  him  write  ;  his  evidence  was  rejected,  by  Maule, 
J.,  on  the  ground,  that  "  Knowledge  obtained  for  such  a  specific 
purpose  and  under  such  a  bias  is  not  such  as  to  make  a  man  ad- 
missible as  a  quasi  expert  witness."  ^ 

§  708.  Seeing  another  person  write,  therefore,  though  tech- 
Witness  nically  the  most  direct  way  of  becoming  familiar  with 
familiar       jjjg  handwriting:,  is  not  so  generally  reliable  as  the  ac- 

with  an-  _  p'  ... 

other's         quaiutance  which  one  man,  himself  experienced  in  pen- 

handwrit-  .  „.,.."., 

ing  may  manship,  acquires  from  a  lamuiarity  with  another  s 
prove  1  -writings.  This  familiarity  may  be  based  upon  an  in- 
terchange of  correspondence  with  such  other  person.     It  may  be 

1  See  Eeid  v.  State,  20  Ga.  681.  Keith  v.  Lotbroii,  10  Cush.  453  ;  and 

2  Best's  Ev.  §  236.  infra,  §  715.     See,  also,  Doe  v.  New- 
2  See  the   judgments    af    Patteson     ton,  5  Ad.  &  El.  514. 

a-nd  Ck)leridge,  JJ.,  in  Doe  d.  Mudd        *  Stanger  v.  Searle,  1  Esp.  14. 
V.  Suckermone,  5  A.  &  El.  703 ;  S.  P.,         ^  r.  y.  Crouch,  4  Cox  C.  C.  163. 

674 


CHAP.  IX.]  PROOF   OF  HANDWRITING.  [§  708. 

based,  as  is  that  of  a  bank  teller,  upon  the  payment  of  checks. 
It  may  be  based  vipon  any  ordinary  business  transactions  in  which 
writings  are  used,^  It  may  be  utterly  severed  from  any  proof 
that  the  witness  ever  saw  the  party  write.  It  is  sufficient  to 
admit  such  evidence  that  there  is  an  acknowledgment,  express 
or  implied,  by  the  party  writing,  of  the  writings  from  which  the 
opinion  of  the  witness  is  drawn.^  If,  for  instance,  W.  writes  to 
P.,  by  the  post,  to  P.'s  usual  address,  and  an  answer,  purporting 
to  come  from  P.,  is  received  by  W.  by  post,  this,  if  the  corre- 
spondence continues,  raises  a  presumption  that  P.'s  letter  is 
genuine,  and  thus  enables  W.  to  take  it  as  the  basis  of  his 
opinion  as  to  P.'s  handwriting.^  A  clerk  or  servant  taking  his 
master's  letters  to  the  post,  or  an  agent  consulted  as  to  his  prin- 
cipal's writings,  is  in  like  manner  entitled  to  form  an  admissible 
opinion ;  *  and  so  of  a  business  correspondent  who  has  taken 
notes  in  the  same  writing  to  the  alleged  maker,  who  has  paid 
the  notes ;  ^  and  of  a  person  whose  official  duty  makes  it  in- 
cumbent on  him  to  act  frequently  on  the  signature  of  the  alleged 
writer.^  Persons  familiar  with  the  signature  of  the  officers  of 
the  bank  to  bank  notes,  such  notes  being  proved  to  be  treated  by 
the  bank  as  good,  may  be  permitted  to  prove  such  signatures.'^ 

"^  See  supra,  §  704,  as  to  such  ac-  Taj'lor,  3  Allen,  598;  Jackson  v.  Van 

quaintancc  with  ancient  writings.  Dusen,  5  Johns.  R.   144;  Johnson  v. 

2  Tharpe  v.   Gisburne,    2    C.  &  P.  Daverne,    19   Johns.    134  ;    Baker  v. 

21;  Greaves  v.  Hunter,  2  C.  &  P.  177;  Squier,  1  Hun,  448;  S.  C.  3  S.  C.  465; 

Doe  V.  Suckermore,  5   A.  &  E.  731  ;  Com.  v.   Smith,  6   S.  &  R.  568  ;  Mc- 

S.     C.    2    N.    &    P.    46 ;    U.    S.    v.  Konkey  v.  Gaylord,  1  Jones  (N.  C.) 

Keen,  1  McLean,  429  ;  U.  S.  v.  3109  L.  94  ;  South,  Ex.  Co.  v.  Thornton,  41 

Cases    of    Champagne,   1    Ben.  241;  Miss.  216;  Rcyburn  i'.  Bclutti,  10  ]\Io. 

Hammond's  case,  2  Greenl.  33  ;   Page  597.     See  Desbrow  i'.  Farrow,  3  Rich. 

V.  Homans,  14  Me.  478  ;  Burnham  v.  (S.  C.)  382;  and  see  infra,  §  1323. 

Ayer,  36  N.  H.  182;  Com.  v.  Peck,  1  *  Doe  v.    Suckermore,  5  Ad.  &  E. 

Mete.  (Mass.)  428;  Lyon  v.  Lyman,  9  740. 

Conn.  55  ;  Com.  v.  Carey,  2  Pick.  47;  ^  Johnson  v.  Daverne,  19  Johns.  R. 

U.  S.  V.  Simpson,  3  Pcnn.  437;  State  134;  Donaghoe  v.  People,    6   Parker 

V.   Spence,   2   Harring.   348;  Turnip-  C.  R.  120;  Hess  r.  State,  5  Ohio,  5. 

seed  y.  Hawkins,  1  INIcCord,  272;  Gor-  "  Amherst  Bank  v.   Root,  2  Mete, 

don  I'.  Price,  10  Ired.  L.  385;  Jones  522;  Willson  v.  Betts,  4   Denio,  201  ; 

V.  Huggins,  1    Dev.  L.  223  ;  Bruce  v.  Bank  of  the  Com.  r.  Mudgett,  44  N. 

Crews,  39  Ga.  544.  Y.  514  ;  Sill  i\  Reese,  47  Cal.  294. 

8  Carey  v.  Pitt,  Pea.  Add.  Cas.130  ;  '  State  v.  Carr,  5  N.  H.  367;  Am- 

Gould  V.  Jones,  1  W.  Bl.  384  ;  State  herst  Bank  v.  Root,  2   Mete.  (Mass.) 

V.  Shiuborn,  46  N.  H.  497;  Chaffee  r.  522  ;  State  v.  Stalmaker,  2  Brevard, 

G75 


§  T09.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


It  is  scarcely  necessary  to  add  that  the  writings  from  whicli  the 
witness  draws  his  opinion  must  bo  identified  as  those  of  tlie  party 
whose  writing  is  contested  on  the  trial. ^  It  will  not  be  enough 
that  the  witness  obtains  his  knowledge  from  letters  said  to  be 
genuine.^  It  may  be  added  that  this  kind  of  testimony  is  not 
excluded,  as  has  been  already  noticed,  by  the  fact  that  the  writer 
of  the  instrument  is  himself  in  court,  and  could  be  called.^ 

§  709.  A  witness  called  to  testify  as  to  handwriting,  and  who 
Burden  on    establishes  a  prima  facie  case  of  acquaintance  with  the 

opposite  ,   ,         -'  "^  _    -^ 

party  to       handwriting  of  the  person  whose  signature  is  in  dispute 


1 ;  State  v.  Candler,  3  Hawks,  393  ; 
Allen  V.  State,  3  Humph.  367. 

^  Doe  V.  Suckerniore,  5  A.  &  E. 
731,  by  Patterson,  J.  ;  Cochran  v. 
Butterfield,  18  N.  H.  115;  McKeone 
V.  Barnes,  108  Mass.  344: ;  Com.  v. 
Coe,  115  Mass.  481  ;  Cunningham  v. 
Bank,  21  Wend.  557;  Boyle  v.  Col- 
man,  13  Barb.  42;  Magie  v.  Osborn, 
1  Robt.  (N.  Y.)  689. 

We  have  this  position  pushed  to 
a  questionable  extreme  in  an  English 
case,  in  a  suit  on  a  joint  and  several 
promissory  note  against  three  persons. 
The  signature  of  one  of  them  was  at- 
tempted to  be  proved  by  calling  the 
attorney  for  the  defendants,  whose 
knowledge  of  the  handwriting  in  ques- 
tion was  founded  on  the  circumstance, 
that  he  had  received  a  retainer  pur- 
porting to  be  signed  by  his  three 
clients,  and  had  acted  upon  it  in  de- 
fending the  action.  It  was  held  by 
the  court  of  common  pleas  that  his  tes- 
timony was  inadmissible,  as  no  proof 
was  given  tbat  the  party  had  ever  ac- 
knowledged the  signature  of  the  at- 
torney, and  either  of  the  other  two 
defendants  might  have  signed  the  re- 
tainer for  him  with  his  assent.  Drew 
V.  Prior,  5  M.  &  Gr.  264.  So,  the 
testimony  of  an  inspector  of  franks, 
called  to  prove  the  handwriting  of  a 
member  of  parliament,  has  on  two 
occasions    been   rejected,   where   the 

676 


knowledge  of  the  witness  was  simply 
derived  from  his  having  frequently 
seen  franks  pass  through  the  post-of- 
fice, bearing  the  name  of  such  mem- 
ber, but  whore  he  had  never  communi- 
cated with  the  member  on  the  subject 
of  franks;  for,  in  this  case,  the  super- 
scriptions of  the  letters  seen  by  the 
witness  might  possibly  have  been  forg- 
eries. Carey  v.  Pitt,  Pea.  Add.  Cas. 
130,  per  Ld.  Kenyon  ;  Batcheldor  v. 
Honey  wood,  2  Esp.  714,  per  Ibid. 
These  last  decisions,  it  is  well  added 
by  Mr.  Taylor  (Evidence,  §  1G64), 
certainly  carry  the  law  to  the  verge  of 
impropriety,  since  they  arc  founded  on 
a  presumption  which  not  only  is  im- 
probable in  the  highest  degree,  but  is 
in  direct  contradiction  to  the  sound 
rule,  that  a  crime  is  not  to  be  pre- 
sumed, or  so  much  as  suspected,  with- 
out special  cause,  in  any  single  in- 
stance, much  less  in  a  number  of  un- 
connected instances.    3  Bent.  Ev.  G04 

2  Nat.  Un.  Bk.  i--.  Marsh,  46  Vt 
443  ;  Goldsmith  v.  Bane,  3  Halst.  87 
McKonkey  v.  Gaylord,  1  Jones  L 
(N.  C.)  94.  See  R.  v.  Benson,  2  Camp 
508. 

8  Smith  V.  Prescott,  17  Me.  277 
Ainsworth  v.  Greenlee,  1  Hawks,  190 
Pomeroy  v.  Golly,  Ga.  Dec.  pt.  i.  26 
McCaskle  i'.  Amarine,  12  Ala.  17 
Supra,  §  706. 


CHAP.  IX.]  PROOF   OF  HANDWRITING.  [§  710. 


has  tlie  presumption  of  competency  in  his  favor.^     If,    show  wit- 

■"■  '■        ,  .  .  ,  "6SS  is  in- 

however,  the  opposing  party  contest  his  qualifications,  competent. 
he  may  be  cross-examined  as  to  his  reasons,  so  that  these  quah- 
fications  may  be  tested  by  the  court.^  It  is  not  necessary  that 
tlie  witness  should  swear  to  an  actual  belief  in  the  genuineness  of 
a  writing.  It  is  enough  if  he  states  his  opinion  as  to  such  genu- 
ineness.^ Lord  Kenyon  went  so  far  as  to  hold  that  it  was  admis- 
sible for  a  witness  to  testify  merely  that  the  contested  writing 
was  like  the  handwriting  of  the  party  to  whom  it  is  charged  ;  * 
and  though  this  has  been  doubted  by  Lord  Eldon,^  yet  it  is  hard 
to  say  why  the  value  of  such  testimony  is  not  as  much  for  the 
jury  as  for  the  court.^ 

§  710.  There  is  little  question  that  a  witness  may,  on  cross- 
examination,  be  tested  by  putting  to  him  other  writ-    q^ 


cross- 


ings, not  admitted  in  evidence  in  the  case,  and  asking   examina- 
him  whether  such  writings  are  in  the  same  hand  with   ness  may 

...  .  be  tested 

that  in  litigation.     The  tendency,  also,  is  to  hold  that   by  other 
the   test  AYritings,  if   declared   by  the  witness   to   be  "  ' 

genuine,  may  be  shown  by  the  cross-examining  party  to  be  not 
genuine,  and  may  be  given  to  the  jury  for  comparison.^ 

But  a  witness,  when  called  to  testify  as  to  his  own  writing, 
should  have  the  whole  paper  before  him  in  order  to  enable 
him  to  make  up  his  judgment.  Hence,  on  examination  of  a 
party  as  to  whether  a  certain  writing  is  his,  he  cannot  be  com- 
pelled to  answer  whether  the  signature  is  his,  unless  he  is  per- 
mitted to  examine  the  paper  to  which  it  is  appended.^ 

1  (looilliue  r.  Bartlett,  5  McLean,  Ev.  249,  n.  2.     As  to  cross-examina- 
186  ;  Moody  i'.  Rowell,  17  Pick.  490  ;  tion,  see  supra,  §§  531  et  seq. 
Wluttier    v.     Gould,   8    Watts,  485;  6  Ej^gieton  v.  Kingston,  8  Ves.  476. 
Barwick   v.  Wood,   3   Jones  L.   30G  ;  See,  also,  Cruise  v.  Clancy,  8  h-ish  Eq. 
Henderson  v.  Bank,  11  Ala.  855.  552;  Taylor   v.  Sutherland,  24  Pcnn. 

2  See    Rogers   r.    Ritter,  12  Wall.  St.  333  ;' Taylor's  Ev.  §  IGGG. 
317;  Slaymaker  v.  Wilson,  1  Tenn.  R.  °  See  Benth.  Jud.  Ev.  ill.  599. 
21G.  ''  Sec  Griffitts  v.  Ivory,  11    A.  &  E. 

8  Watson  V.  Brewster,   1    Pcnn.  St.  322;  3  P.  &   1).  179;  Young  v.  Ilon- 

381;  Shitler   v.  Bremer,  23  Pcnn.  St.  ner,  2  M.  &  Rob.  537. 

413  ;  Clark  v.  Freeman,  25  Pcnn.  St.  ^  North  Am.  Ins.  Co.  i'.  Throop,  22 

133;  Fash  v.  Blake,  38  111.  3G3  ;  and  Mich.  14G. 

sec  Utica  Ins.  Co.  v.  Badger,  3  Wend.  "  AV^hcre  'an  expert,"  said  Cooley, 

102.      See  supra,  §  515.  J.,  "is  undertaking  to  testify  concern- 

*  Garrells  v.  Alexander,  4  Esp.  37  ;  ing  handwriting,  it  is   difllcult  to  set 

approved  by  Lord  Wynford,  see  2  Ph.  any  bounds  to  an  examination  which 

677 


§  711.] 
§  Til. 

By  Roman 
law  com- 
parison of 
hands  is 
permitted. 


THE   LAW   OF  EVIDENCE. 


[book  II. 


By  the  Roman  law,  the  genuineness  of  a  contested 
writing  may  be  sustained  by  witnesses  comparing  such 
writing  with  other  writings  acknowledged  to  be  genuine. 
Some  fluctuation  of  opinion,  however,  was  exhibited  as 
to  the  writings  to  be  taken  as  a  basis  for  such  conipari- 


may  reasonably  tend  to  test  the  accu- 
racy of  his  knowledge,  skill,  and  judg- 
ment. Obviously  it  would  be  proper 
to  subject  him  to  tests  which  would  be 
entirely  improper  and  tend  unjustly 
to  embarrass  and  confuse  one  who  did 
not  assume  to  be  an  expert,  but  who 
might,  nevertheless,  have  some  per- 
sonal knowledge  of  a  particular  spec- 
imen of  handwriting  submitted  to  his 
inspection.  A  person  who  cannot 
even  read  handwriting  may,  neverthe- 
less, be  able  to  testify  to  a  particular 
signature  which  he  has  seen  made ; 
for  particular  marks  upon  the  paper 
may  identify,  beyond  question,  the 
instrument  whose  execution  he  wit- 
nessed. But  if  such  a  witness  were 
required  to  look  at  the  signature  sep- 
arated from  the  instrument,  and  to 
say,  without  any  of  the  aids  which 
the  marks  upon  the  instrument  would 
give  him,  whether  that  was  or  was  not 
the  signature  he  saw  written,  it  is  per- 
ceived at  once  that  the  requirement 
would  be  unfair,  and  a  categorical  an- 
swer impossible.  Now  it  may  be  said 
that  every  man  is  an  expert  as  regards 
his  own  handwriting,  and  may  right- 
fully be  subjected  to  the  same  tests, 
when  he  is  called  to  testify  concerning 
it,  that  other  experts  might  be  tried 
by;  but,  in  fact,  a  large  proportion  of 
the  peojjle  do  not  possess,  or  assume 
to  possess,  any  such  knowledge  of  the 
peculiarities  of  their  own  handwriting, 
if  any  such  there  are,  distinguishing 
it  from  any  other,  as  would  justify 
their  expressing  the  opinion  whether 
isolated  '  signatures,  which  might  be 
theirs,  were  in  truth  so  or  not.  The 
handwriting  of  a  man  who  writes  but 

678 


little  may  never  acquire  any  very  defi- 
nite characteristics,  or  any  great  uni- 
formity; and  a  very  accurate  penman 
may  possibly  copy  the  correct  stand- 
ard of  penmanship  so  nearly  as  to 
render  it  difficult  for  him  to  determine 
whether  a  particular  word  shoAvn  to 
him  was  written  by  himself  or  by  some 
other  writer,  who,  with  equal  facility, 
has  copied  the  same  standard.  All 
writing  in  the  same  language  follows, 
in  greater  or  less  degree,  the  same 
models,  and  the  same  uniformity  is 
always  to  be  expected.  If  all  houses 
were  constructed  in  a  like  degree  after 
one  plan,  it  might  be,  nevertheless, 
possible  for  any  house  builder  to  rec- 
ognize the  several  houses  he  had 
built,  if  he  could  see  each  with  its 
surroundings  ;  but  to  require  him  to 
take  a  view  of  one,  with  the  surround- 
ings excluded,  and  to  say  w^hether  he 
constructed  it  or  not,  could  hardly 
be  fair  to  the  witness,  or  a  method 
likely  to  bring  out  the  knowledge, 
if  any,  which  he  actually  possessed. 
A  man  may  recognize  even  a  casual 
acquaintance  if  his  whole  person,  size, 
height,  carriage,  and  peculiarities  of 
deportment  may  be  observed,  when, 
if  he  were  compelled  to  judge  by  a 
single  feature,  or  even  by  a  view  of 
the  whole  face,  he  might  easily  be 
deceived,  in  consequence  of  missing 
something  upon  which  his  recognition 
in  part  depended.  Any  examination, 
based  upon  such  partial  view,  might 
be  useful,  if  entrapping  the  witness 
were  the  purpose  to  be  accomplished  ; 
but  it  could  not  be  a  reasonable  mode 
of  arriving  at  the  truth.  The  witness 
in  any  such  case  is  fairly  entitled  to 


CHAP.  IX.] 


PROOF    OF   HANDWRITING. 


[§  712. 


son.i  It  was  first  held  that,  in  order  to  put  a  greater  clieck  on 
forger}^  writings,  to  be  thus  accepted,  must  be  either  pubhcly 
registered,  or  should  be  attested  by  three  witnesses.^  Subse- 
quently it  was  declared  that  for  the  same  purpose  might  be  used 
private  papers  acknowledged  by  the  wa'iter,  or  deposited  by  him 
in  public  archives."^  The  substantial  result,  however,  finally 
reached  is,  that  to  enable  a  writing  to  be  adopted  as  a  standard 
of  comparison,  it  must  be  demonstrated  to  be  genuine.  It  makes 
no  matter  what  is  the  writing  thus  adopted.  It  may  be,  as 
Gensler  remarks,  a  love-letter,  or  it  may  be  a  testament.*  If 
genuine,  it  may  be  received  as  a  standard. 

§  712.  By  the  English  common  law,  it  is  said,  such  a  com- 
parison is  inadmissible.^     The  reasoning  on  which  this 
conclusion  rests  is  that,  no  doubt,  which  influenced  the   wise  by 
earlier  Roman  jurists.     Handwriting,  especially  among   common 
those  with  whom  writing  is  not  a  habit,  often  changes    *^' 
from  period  to  period  ;  a  man  not  accustomed  to  write  may  write 
now  very  differentl}'  from  the  way  he  did  five  years  ago.     Culti- 
vation, also,  in  handwriting,  as  well  as  in  other  arts,  produces 
a  variety  of  types,  and  the  less  cultivation,  the   greater  is  the 
sameness,  and  the  less  opportunity  of  distinguishing  peculiari- 
ties.    So,  in  a  non-literary  and  non-commercial  age,  there  are 
few  whose  business  it  is  to  study  the  distinctions  of  handwriting ; 
in  a  commercial  age  this  is  a  necessity,  and  calls  for  a  distinct 


all  the  aids  to  recognition  which  the 
circumstances  and  surroundings  af- 
ford ;  and  we  think  the  court  very 
justly  and  properly  required  that  he 
should  have  them  in  this  case.  This 
by  no  means  precludes  a  careful  and 
critical  examination  of  the  witness  af- 
ter the  general  question  has  been  an- 
swered, with  a  view  to  testing  the  ac- 
curacy of  the  opinion  expressed,  and 
the  grounds  upon  which  it  is  based. 
A  thorough  sifting  of  the  testimony 
of  the  witness  is  always  admissible; 
but  justice  to  him  required  that,  before 
he  is  subjected  to  that  process,  he 
should  be  allowed  to  give  his  testi- 
mony in  view  of  all  the  facts  bearing 
upon  the  point  under  examination,  so 


f;xr  as  they  may  be  within  his  knowl- 
edge, instead  of  being  restricted  to  a 
partial  and  imperfect  view,  by  means 
of  which  the  likelihood  of  error, 
mistake,  and  embarrassment  may  be 
greatly  increased."  Cooley,  J.,  The 
North  American  Fire  Insurance  Co. 
V.  Throop,  22  Michigan  K.  IGl. 

^  Biichncr,  De  probatione  de  lite- 
rarum  comparationem. 

2  L.  20,  c.  iv.  21. 

8  Nov.  49,  cap.  2. 

*  See  Gensler  in  Archiv.  ii.  330  ; 
Langenbeck,  Beweis.  ii.  653. 

^  Garrels  v.  Alexander,  4  Esp.  37  ; 
Bromage  r.  Rice,  7  C.  &  P.  548; 
Hughes  i\  Rogers,  8  M.  &  W.  123. 

679 


§  712.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


profession.  In  the  United  States  we  have  a  series  of  authorities 
which  rest  on  the  older  English  rule,  and  hence,  following  this 
reasoning,  exclude  evidence  of  genuineness  based  on  comparison 
of  hands.i 


1  In  New  York,  Jackson  v.  Phil- 
lips, 9  Cow.  94 :  Titford  v.  Knott,  2 
John.  Ca.  210,  now  however,  altered 
by  statute.  See  People  v.  Hewitt,  2 
Parker  C.  C.  20;  Bank  of  Penns.  v. 
Haldenian,  1  Penn.  161  ;  Slayniaker 
V.  Wilson,  1  Penn.  216  ;  Penn.  R.  R. 
V.  Hickman,  28  Penn.  St.  318  ;  Niller 
V.  Johnson,  27  Md.  6  ;  Virginia, 
Rowt  V.  Kile,  1  Leigh,  216;  Richard- 
son V.  Johnson,  3  Brev.  51  ;  North 
Carolina,  State  v.  Allen,  1  Hawks,  6; 
Pope  V.  Askew,  1  Iredell,  16  ;  Illi- 
nois, Junipertz  v.  People,  21  111.  375  ; 
Kernin  v.  Hill,  37  111.209;  Indiana, 
Chance  v.  R.  R.  32  Ind.  4  72;  Burdick 
r.  Hunt,  43  Ind.  381;  overruling  Clark 
V.  Wyatt,  15  Ind.  271  ;  in  Louisiana, 
State  V.  Fritz,  23  La.  An.  55.  See,  to 
same  effect,  U.  S.  i\  Craig,  4  Wash.  C. 
C.  729;  Shank  v.  Putsch,  28  Ind. 
19;  Woodard  v.  Spiller,  1  Dana,  179; 
Clark  V.  Rhodes,  2  Heisk.  206 ;  State 
V.  Givens,  5  Ala.  74  7;  Bishop  v.  State, 
30  Ala.  34  ;  Hanley  v.  Gandy,  28 
Texas,  211;  Pierce  v.  Northey,  14 
Wise.  9. 

The  rule  of  the  English  common 
law  courts  in  this  respect  was  opposed 
to  that  of  the  ecclesiastical  courts, 
which  admitted  comparison  of  hands. 
1  Will,  on  Ex.  309  ;  1  Ought,  tit.  225, 
§§  1-4  ;  Doe  V.  Suckermore,  5  A.  &  E. 
708-710,  per  Coleridge,  J.;  Beaumont 
V.  Perkins,  1  Phillim.  78  ;  Supt.  v.  At- 
kinson, 1  Add.  215,  216  ;  Mackin  v. 
Grinslow,  2  Cas.  temp.  Lee,  335  ;  2 
Add.  91,  n.  a,  S.  C. 

The  act  of  parliament  of  28  &  29 
Vict.  c.  18,  enacts,  in  section  eight, 
"  that  comparison  of  a  disputed  writ- 
ing with  any  writing  proved  to  the 
satisfaction  of  the  judge  to  be  gen- 

680 


nine,  shall  be  permitted  to  be  made 
by  the  witness  ;  and  such  writings, 
and  the  evidence  of  witnesses  re- 
specting the  same,  may  be  submitted 
to  the  court  and  jury  as  evidence  of 
the  genuineness,  or  otherwise,  of  the 
writing  in  dispute."  Section  one  of 
the  same  act  provides,  that  the  above 
enactment  —  in  common  with  certain 
other  clauses  relating  to  evidence  — 
"  shall  apply  to  all  courts  of  judica- 
ture, as  well  criminal  as  others,  and  to 
all  persons  having,  by  law  or  by  con- 
sent of  parties,  authority  to  hear,  re- 
ceive, and  examine  evidence,  whether 
in  England  or  in  Ireland."  This  rule 
has  been  adopted  by  the  committee 
for  privileges  in  the  house  of  lords. 
Shrewsbury  Peer.  7  H.  of  L.  Cas.  1,  15. 
Under  this  statute  it  has  been  held, 
first,  that  any  writings,  the  genuine- 
ness of  which  is  proved  to  the  satis- 
faction, not  of  the  jury,  but  of  the 
judge  (see  Egan  v.  Cowan,  30  Law 
Times,  223,  in  Ir.  Ex.),  may  be  used 
for  the  purposes  of  comparison,  al- 
though they  may  not  be  admissible  in 
evidence  for  any  other  purpose  in  the 
cause  ;  Birch  v.  Ridgway,  1  Fost.  & 
Fin.  270;  Creswell  v.  Jackson,  2  Fost. 
&  Fin.  24 ;  and  next,  that  the  compar- 
ison may  be  made  either  by  witnesses, 
or  without  the  intervention  of  any 
Avitnesses  at  all,  by  the  jury  them- 
selves ;  Cobbett  v.  Kilminster,  4  Fost. 
&  Fin.  490,  per  Martin,  B.  ;  or  in  the 
event  of  there  being  no  jury,  by  the 
court.  If,  therefore,  an  action  be 
brought  by  the  indorsee  of  a  bill  of 
exchange  against  the  acceptor,  who, 
by  his  plea,  has  denied  the  indorse- 
ment by  the  drawer,  it  seems  that  the 
jury  may,  by    simply   comparing  the 


CHAP.  IX.] 


PROOF   OF  HANDWRITING. 


[§  713. 


§  713.  By  the  courts  excluding  comparison  in  hands  a  single 
exception  is  made  :  when  a  writing;,  proved  to  be  that   t- 
of  the  party  whose  signature  is  in  litigation,  is  already   a"*  *"  'est 

•  -.  ,        .         1  ■      ,-  ,  ,  paper  al- 

m  evidence,  having  been  put  in  for  other  purposes,  then  ready  ia 
it  is  admissible  to  resort  to  this  writing  in  order  to  de- 
termine the  genuineness  of  the  litigated  instrument.^ 

indorsement  with  tlie  drawing,  which     him  to  his  attorney,  in  fact,  by  virtue 
is  conckisively  admitted  to  be  genu-     of  whicli  he  appeared  and  presented 


ine,  find  a  verdict  for  tlie  plaintiff, 
even  though  no  witness  be  called  to 
disprove  the  plea.  See,  as  to  tlie 
former  law,  Allport  r.  Meek,  4  C.  & 
P.  267.     Taylor's  Ev.  §  1667. 

^  Solita  V.  Yarrow,  1  M.  &  Rob. 
133  ;  Waddington  i'.  Cousins,  7  C.  & 
P.  595 ;  Perry  v.  Newton,  1  Nev.  & 
P.  1  ;  5  Ad.  &  E.  514  ;  Myers  v.  Tos- 
can,  3  N.  II.  47  ;  State  i'.  Carr,  5  N. 
H.  367  ;  Van  Wyck  v.  Mcintosh,  14 
N.  Y.  439;  Randolph  v.  Loughlin,  48 
N.  Y.  458;  Williams  v.  Drexel,  14 
Md.  566  ;  Duncan  v.  Beard,  2  Nott  & 
McC.  401 ;  Henderson  v.  Hackney, 
16  Ga.  521  ;  North  Bk.  v.  Buford,  1 
Duvall,  335;  Brobston  v.  Cahill,  64 
HI.  358  ;  Goodyear  v.  Vosburgh,  63 
Barb.  154. 

In  Moore  v.  U.  S.  91  U.  S.  (1  Otto) 
270,  the  question  is  thus  discussed  by 
Bradley,  J.  :  — 

"  The  general  rule  of  the  common 
law,  disallowing  a  comparison  of  hand- 
writing as  proof  of  signature,  has  e.\- 
ceptions  equally  as  well  settled  as  the 
rule  itself.  One  of  these  e.xceptions 
is,  that  if  a  paper  admitted  to  be  in 
the   handwriting  of  the  party,  or  to 


the  claim  to  the  court.  This  certainly 
amounted  to  a  declaration,  on  his  part, 
that  it  was  in  his  hand,  and  to  pretend 
the  contrary  would  operate  as  a  fraud 
on  the  court.  We  think  it  brings  the 
case  within  the  rule,  and  that  the 
court  of  claims  had  the  right  to  make 
the  comparison  it  did."  See  Medway 
V.  U.  S.  6  Ct.  of  CI.  421  ;  U.  S.  v. 
Chamberlain,  12  Blatch.  390. 

As  denying  this  exception,  see  Out- 
law r.  Hurdle,  1  Jones  (N.  C.)  L. 
150;  Otey  v.  Hoyt,  3  Jones  (N.  C.)  L. 
407. 

See,  also,  remarks  of  Davis,  J.,  in 
Rogers  i'.  Ritter,  12  Wall.  322. 

So  in  Maryland:  "In  the  case  of 
Smith  V.  Walton,  8  Gill,  86,  Judge 
Martin,  delivering  the  opinion  of  this 
court,  after  adverting  to  the  argu- 
ments in  favor  of  the  admission  of  evi- 
dence of  comparison,  and  conceding 
it  had  been  done  in  some  of  the  Amer- 
ican courts,  declares  :  '  It  is  in  conflict 
with  the  doctrine  of  the  common  law, 
as  enunciated  in  AVestminster  Hall.' 
In  another  paragraph  he  says  :  '  We 
consider  it  as  the  settled  rule  of  the 
English  law,  which  in  this  respect  we 


have  been  subscribed  by  him,  is  in     approve  and  adopt,  that  with  the  ex- 


evidence  for  some  other  purpose  in 
the  cause,  the  signature  or  jjaper  in 
question  may  be  compared  with  it  by 
the  jury.  It  is  not  distinctly  stated, 
in  this  case,  that  the  writing  used  as  a 


ception  of  ancient  documents  (an  ex- 
ception standing  upon  the  necessity 
of  the  case),  signatures  cannot  be 
proved  by  a  direct  comp.arison  of 
hands.     By  which  it  is  meant  the  col- 


basis  of  comparison  was  admitted  to  lalion  of  two  papers  in  jiixt;ii>osilion, 
be  in  the  claimant's  hand  ;  but  it  was  for  the  purpose  of  ascertaining  by  in- 
conceded  by  counsel  that  it  was,  in  spection  if  they  were  written  by  the 
fact,  the  power  of  attorney  given  by  same   person.'     In    sujjport  of    these 

681 


714.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


§  714.  In  other  states  it  is  the  settled  practice  to  admit  any 
In  some  ju-  papers,  whether  in  themselves  relevant  to  the  issue  or 
c'oinpaw"on    ^^^^*''  ^^  ^^^^7  ^^^^  ^®  shown  to  be  the  uncontested  writ- 


views,  the  remarks  of  Mr.  Justice 
Coleridge  in  the  leading  case  of  Doe, 
dem.  of  Mudd  v.  Suckermore,  5  Adol. 
&  Ellis,  730,  are  cited,  namely:  '  Our 
law  has  not,  during  a  long  course  of 
years,  permitted  handwriting  to  be 
proved  by  the  immediate  comparison 
by  a  witness  of  the  paper  in  dispute, 
with  some  other  specimen,  proved  to 
have  been  written  by  the  supposed 
writer  of  the  first It  was  fa- 
miliar to  lawyers  that  many  attempts 
have  been  made  to  introduce  this 
mode  of  proof  according  to  the  prac- 
tice of  the  civil  and  ecclesiastical  laws, 
but  after  some  uncertainty  of  decision, 
the  attempts  have  failed."  Bowie,  J., 
Tome  I'.  R.  R.  39  Md.  90-93. 

So,  also,  in  New  York.  "  The  suit 
was  upon  a  single  note  purporting  to 
have  been  made  by  the  respondent, 
the  signature  to  which  he  claimed  to 
be  a  forgery.  The  plaintiff  was  per- 
mitted, against  the  respondent's  ob- 
jection upon  the  trial,  to  put  other 
notes  in  evidence  purporting  to  have 
been  made  by  him,  the  signatures  to 
some  of  which  were  admitted  to  be 
genuine,  and  to  others  claimed  to  be 
forgeries.  I  am  unable  to  see  how 
these  other  notes  were  competent  evi- 
dence, and  what  possible  bearing  they 
could  have  upon  the  issues  upon  trial. 
As  they  were  not  competent  evidence 
for  any  other  purpose,  they  could  not 
be  received  in  evidence  to  enable  the 
jury  to  compare  the  signatures  to  them 
with  the  signature  to  the  note  in  suit. 
That  such  evidence  is  incompetent  is 
well  settled.  Van  Wyck  v.  Mcintosh, 
14  N.  Y.  439;  Dubois  v.  Baker,  30 
N.  Y.  355."  Earl,  G.,  Randolph  v. 
Loughlin,  48  N.  Y.  458.  See,  also, 
to    same   eflfect,   Baker   v.    Squier,    1 

682 


Hun,  448;  5.  C.  3  S.  C.  4G5;  Bank  of 
Com.  V.  Mudgett,  44  N.  Y.  514;  6\  C. 
45  Barb.  663;  Ellis  v.  People,  21  How. 
Pr.  356.  In  criminal  cases  comparison 
of  hands  is  in  any  view  inadmissible. 
People  V.  Spooner,  1  Den.  343. 

To  the  same  eflFect  is  a  learned 
opinion  of  Walker,  J.,  in  Brobston  v. 
Cahill,  64  111.  358. 

In  Foster's  Will,  Supt.  Ct.  Mich. 
1876,  reported  in  8  Am.  Law  Times 
Rep.  412,  and  commented  on  (see  su- 
pra, §  602),  it  was  held  not  to  be  error 
to  refuse  to  require  a  jury,  when  they 
do  not  ask  for  it,  to  take  to  their 
jury  room  a  will  that  is  in  suit  before 
them,  for  the  purpose  of  comparing 
the  body  of  the  document  with  the 
signature,  to  see  if  it  is  not  vitiated  by 
forgery. 

"Every  one  knows,"  said  Camp- 
bell, J.,  "  how  very  unsafe  it  is  to 
rely  upon  any  one's  opinions  concern- 
ing the  niceties  of  penmanship.  The 
introduction  of  professional  experts 
has  only  added  to  the  mischief  instead 
of  palliating  it,  and  the  results  of  liti- 
gation have  shown  that  these  are  often 
the  merest  pretenders  to  knowledge, 
whose  notions  are  pure  speculation. 
Opinions  are  necessarily  received,  and 
may  be  valuable,  but  at  best  this  kind 
of  testimony  is  a  necessary  evil.  Those 
who  have  had  personal  acquaintance 
Avith  the  handwriting  jof  a  person  are 
not  always  reliable  in  their  views ; 
and  single  signatures,  apart  from  some 
known  surroundings,  are  not  always 
recognized  by  the  one  who  made  them. 
Every  degree  of  removal  beyond  per- 
sonal knowledge  into  the  domain  of 
what  is  sometimes  called,  with  great 
liberality,  scientific  opinion,  is  a  step 
towards  greater  uncertainty,  and  the 


CHAP.  IX.] 


PROOF  OF  HANDWRITING. 


[§    <14- 


iiigs   of   the  party  whose   signature   is   disputed. ^     In   generally 
Pennsylvania,  however,  it  is  said  that  at  common  law   mitted. 
the  proof  from  comparison  of  hands  must  be  viewed  as  supple- 
mentary, and  cannot  be  relied  on  exclusively,^  and  that  the  com- 
parison is  to  be  made  by  the  jury,  not  by  experts.^     To  the  ad- 


science  which  is  so  generally  diffused 
is  of  very  moderate  value.  Subject  to 
cross-examination,  it  may  be  reduced 
to  the  minimum  of  danger.  In  a  jury 
room,  without  any  check  or  con-ective, 
it  would  be  very  dangerous  indeed. 

"  The  question  of  allowing  papers 
not  otherwise  in  the  case  to  be  re- 
ceived and  proved  for  purposes  of 
comparison  was  disposed  of  in  Vinton 
V.  Peck,  14  Mich.  287,  and  we  have 
seen  no  reason  to  change  our  opinion." 

^  Hammond's  case,  2  Greenl.  33; 
Myers  v.  Toscan,  3  N.  H.  47;  State 
V.  Hastings,  53  N.  H.  452;  Adams  ;;. 
Field,  21  Vt.  256;  State  t;.  Ward,  39 
Vt.  225;  Homer  ?).  Wallis,  11  Mass. 
309;  McKeone  v.  Barnes,  108  Mass. 
344;  Moody  v.  Rowell,  17  Pick.  490; 
Richardson  v.  Newcomb,  21  Pick. 
315;  Com.  v.  Eastman,  1  Cush.  189; 
Keith  V.  Lothrop,  10  Cush.  453.  See 
Martin  v.  Maguire,  7  Gray,  177;  Com. 
V.  Williams,  105  Mass.  G2;  Lyon  v. 
Lyman,  9  Conn.  55  ;  McCorkle  v. 
Binns,  5  Binncy,  340;  Bank  of  Lan- 
caster V.  Whitehill,  10  S.  &  R.  110; 
Baker  v.  Haines,  6  Whart.  R.  284; 
Travis  v.  Brown,  43  Penn.  St.  9 ; 
Haycock  v.  Greup,  57  Penn.  St.  438; 
Bragg  V.  Colwell,  19  Oh.  St.  407;  Van 
Sickle  V.  Pfoplc,  29  Mich.  Gl  ;  Roli- 
ertson  v.  Miller,  1  IMclNIull.  (S.  C.) 
120;  Mayo  v.  State,  30  Ala.  32; 
Whitney  v.  Bunnell,  8  La.  An.  429  ; 
State  V.  Fritz,  23  La.  An.  55  ;  State 
V.  Scott,  45  Mo.  302;  Smith  v.  Fcn- 
ner,  1  Gall.  1 70. 

2  Haycock  v.  Greup,  57  Penn.  St. 
438. 

*  Travis  v.  Brown,  4  3  Penn.  St.  9; 
Clayton  v.  Siebert,  3  Brews.  1 76.    See 


State  V.  Scott,  45  Mo.  302  ;  and  see 
co7iira,  Huston  v.  Schindler,  46  Lid. 
38. 

As  to  Pennsylvania  statute  admit- 
ting such  testimony  in  criminal  cases, 
see  Brightly 's  Purd.  i.  631. 

As  to  Iowa  statute,  to  same  effect, 
see  Baker  v.  Mygatt,  14  Iowa,  131. 

In  Pennsylvania,  to  prove  the  writ- 
ing of  a  person  deceased  at  least  forty 
years  previously,  witnesses  are  allowed 
to  speak  from  a  comparison  with  sig- 
natures and  writings  in  family  records, 
admitted  by  the  family  to  be  in  the 
same  handwriting ;  from  letters  in 
possession  of  the  family,  purporting  to 
be  signed  by  the  party;  and  from  oiii- 
cial  documents  acted  upon  as  genuine. 
Sweigart  v.  Richards,  8  Penn.  St.  436. 

So  it  has  been  held  in  the  same 
state  that  a  witness,  although  he  can- 
not base  his  testimony  exclusively  on 
comparison  of  hands,  can  refresh  his 
memory  by  inspecting  genuine  writ- 
ings; McNair  v.  Com.  26  Penn.  St. 
388 ;  see,  to  same  effect,  Bedford  v. 
Peggy,  6  Rand.  (Va.)  316  ;  and  that 
he  may  base  his  judgment  on  compar- 
ison of  hands  when  he  saw  the  signa- 
ture attached  to  tlie  test  paper,  or 
when  the  party  admitted  such  sig- 
nature to  be  his ;  Power  v.  Frick,  2 
Grant  (Penn.)  Cas.  306.  See,  as 
giving  a  still  more  liberal  rule,  Travis 
V.  Brown,  43  Penn.  St.  9. 

In  South  Carolina,  other  papers, 
proved  or  admitted  to  have  been  writ- 
ten by  tlic  party  whose  handwriting  is 
in  contest,  are  receivable  "  in  aid  of 
doubtful  proof;  "  but  the  "  testimony 
is  not  entitled  to  any  very  high  re- 
spect  or   consideration."     Bennett  v. 

683 


§  716.] 


THE  LAW   OF   EVIDENCE. 


[book  II. 


mission  of  a  test  paper,  it  is  essential  that  it  should  be  proved  to 
be  genuine,  to  the  satisfaction  of  the  court. ^ 

§  715.  We  have  already  seen,^  that  a  party  cannot  make  testi- 
Testpnpers  mony  for  himself  by  writing  specimens  for  the  instruc- 
tion of  witnesses  afterwards  to  be  called  as  to  his  hand- 
writing. By  the  same  reasoning,  a  party  cannot  be 
permitted  to  get  up  in  this  way  test  papers  to  be  used  subse- 
quently for  comparison  of  hands.^ 

§  716.  The  mere  finding  of  a  diary  on  a  party,  with  an  admis- 
sion by  him  that  it  belonged  to  him,  is  not  a  sufficient  authen- 


made  for 
purpose  in- 
admissible. 


Matthewes,  5  S.  C.  478;  citing  Bo- 
man  V.  Plunkctt,  2  McC.  518;  Bird  v. 
Miller,  1  McM.  125. 

1  "  On  the  question  whether  the  sig- 
nature of  the  will  was  genuine,  tlie 
letters  wliicli  the  appellant  had  re- 
ceived, purporting  to  be  from  tlie  tes- 
tator, in  an!?wer  to  her  letters  to  him, 
were  not  admissible  as  standards  of 
comparison.  Such  standards  must  be 
established  by  clear  and  undoubted 
proof.  Commonwealth  v.  Eastman,  1 
Cush.  189  ;  Martin  v.  Maguire,  7 
Gray,  177;  Bacon  v.  Williams,  13 
Gray,  525  ;  1  Greenl.  Ev.  §  5S1,  and 
cases  cited.  Tliese  letters  were  not 
thus  proved.  "  The  testimony  of  the 
persons  who  were  called  to  express 
their  opinions  whether  a  man  could, 
within  a  short  time,  so  improve  his 
handwriting,  as  shown  by  the  standard 
signatures  of  the  testator,  as  to  make  a 
signature  of  as  good  a  handwriting  as 
that  of  the  will,  was  also  incompetent. 
It  was  not  a  subject  for  the  testimony 
of  experts."  Chapman,  C.  J.,  Mc- 
Keone  v.  Barnes,  108  Mass.  347. 

In  a  still  later  case  we  have  the  fol- 
lowing :  — 

"  Upon  the  question  whether  a 
given  writing  or  written  word  is  suf- 
ficiently proved  to  have  been  written 
by  the  defendant  to  allow  it  to  be 
submitted  to  the  jury  as  a  standard 
of  comj^arison,  the  judge  at  the  trial 

68^ 


must  pass  in  the  first  instance.  So 
far  as  his  decision  is  of  a  question  of 
fact  merely,  it  must  be  final,  if  there 
is  any  proper  evidence  to  support  it. 
As  in  all  questions  of  that  nature,  ex- 
ceptions to  the  ruling  at  the  trial  will 
be  sustained  only  Avhen  they  show 
clearly  that  there  was  some  erroneous 
application  of  the  principles  of  law  to 
the  facts  of  the  case,  or  that  tlie  evi- 
dence was  admitted  without  proper 
proof  of  the  qualifications  requisite 
for  its  competency.  Foster  v.  ISIac- 
kay,  7  Met.  531 ;  Rich  v.  Jones,  9 
Cush.  329;  Gorton  v.  Hadsell,  9  Cush. 
508  ;  Quinsigamond  Bank  v.  Ilobbs, 
1 1  Gray,  250  ;  Commonwealth  v.  Mul- 
lins,  2  Allen,  295;  Doud  v.  Hall,  8 
Allen,  410;  Lake  v.  Clark,  97  Mass. 
346  ;  Commonwealth  v.  Morrell,  99 
Mass.  542;  Gott  v.  Adams  Express 
Co.  100  Mass.  320;  Presbrey  v.  Old 
Colony  Railroad,  103  Mass.  1 ;  O'Con- 
nor V.  Hallinan,  Ibid.  547;  Gossler 
V.  Eagle  Sugar  Refinery,  Ibid.  331; 
Commonwealth  v.  Williams,  105  Mass. 
62;  Lawton  v.  Chase,  108  Mass.  238; 
Nunes  v.  Perry,  113  Ma?s.  274." 
Wells,  J.,  Commonwealth  v.  Coe,  115 
Mass.  503.  And  see  cases  cited  in 
prior  notes. 

2  Supra,  §  707. 

3  This  point  is  well  shown  in  the 
argument  of  Ames,  J.,  in  King  v. 
Donahue,  110  Mass.  155. 


CHAP.  IX.] 


PROOF   OF   HANDWRITING. 


[§  717. 


tication  of  the  writing  to  justify  its  use  as  a  standard.^  Press 
copies  cannot  be  introduced  as  a  basis  of  comparison,  even  where 
the  original  would  be  admissible  ;^  nor  can  photographic  copies.^ 
§  717.  By  Mr.  Best,  the  reasons  for  the  exclusion  of  this 
form  of  testimony  have  been  summed  up*  as  follows:  Unreason- 
"  1st,  that  the  writings  offered  for  the  pui'pose  of  exdusfon* 
comparison  with  the  document  in  question  might  be  "go,^"^!"^*'"" 
spurious  ;  and,  consequently,  that  before  any  compar-  iiands. 
ison  between  them  and  it  could  be  instituted,  a  collateral  issue 
must  be  tried,  to  determine  their  genuineness.  Nor  is  this  all : 
if  it  were  competent  to  prove  the  genuineness  of  the  main  docu- 
ment by  comparison  with  others,  it  must  be  equally  so  to  prove 
that  of  the  latter  by  comparison  with  fresh  ones,  and  so  the 
inquiry  might  go  on  ad  infinitum^  to  the  great  distraction  of  the 
attention  of  the  jury,  and  delay  in  the  administration  of  justice.^ 
2dly,  that  the  specimens  might  not  be  fairly  selected.^  3dly, 
that  the  persons  composing  the  jury  might  be  unable  to  read, 
and,  consequently,  unable  to  institute  such  a  comparison."  As  to 
the  last  of  these  objections,"  Mr.  Best  replies,  ".it  does  not  seem 

1  Van   Sickle  v.  People,  29  Mich 


61. 

2  Com.  V.  Eastman,  1  Cush.  189. 
See  Com.  v.  Jeffries,  7  Allen,  561. 
See  supra,  §  93. 

3  Supra,  §  676. 

"  The  testimony  of  the  photographer 
comes  within  the  same  principle  as 
that  of  Paine.  It  was  offered  to  es- 
tablibh  the  forgery  of  the  certificates 
in    controversy,    by  comparing   them 


ful  as  well  as  ornamental,  it  is  at  best 
a  mimetic  art,  which  furnishes  only 
secondary  impressions  of  the  original, 
that  vary  according  to  the  lights  or 
shadows  which  prevail  whilst  being 
taken."  Bowie,  J.,  Tome  v.  Par- 
kcrsbm-g  R.  R.  Co.  39  Md.  90,  91-93. 
Bartol,  C.  J.,  and  Alvey,  J.,  dissent- 
ing. 

*  Best's  Ev.  §  238. 

5  Per  Coleridge,  J.,  in  Doe  d.  Mudd 


with  copies  (obtained  by  photographic     v.  Suckermore,  5  A.  &  E.  70G,  707;  2 


processes,  either  magnified  or  of  the 
natural  size)  of  certain  signatures  as- 
sumed or  admitted  to  be  genuine,  and 
pointing  out  the  differences  between 
the  supposed  genuine  and  disputed 
signatures.  As  a  general  rule,  in  pro- 
portion as  the  media  of  evidence  are 
multiplied,  the  chances  o1  error  or 
mistake  are  increased.  Photographers 
do  not  always  produce  exact  fac-sim- 


Stark.  Ev.  516,  3d  ed.;  R.  v.  Sleigh, 
Surrey  Sum.  Ass.  1851,  per  Alderson, 
B.,  IMS. 

^  Ibid.  ;  and  per  Dallas,  C.  J.,  in 
Burr  V.  Harper,  Holt  N.  P.  C.  420. 

''  Per  Lord  Kenyon,  C.  J.,  in  IVIac- 
ferson  v.  Thoytes,  1  Pesike,  20 ;  per 
Dallas,  C.  J.,  in  Burr  v.  Harper,  Holt 
N.  P.  C.  420;  per  Yates,  J.,  in  Brook- 
bard  V.  Woodlcy,  1  Peakc,  20,  note  a; 
per  Lord    Eldon,    C,   in   Eagleton  v. 


lies   of    the   objects   delineated,    and 

however  indebted  we  may  be  to  that     Kingston,  8  Ves.  475. 

beautiful  science  for  much  that  is  use- 

685 


§  717.]  THE  LAW   OF  EVIDENCE.  [BOOK  U. 

satisfactory  logic  to  prohibit  a  jury  which  can  read  from  availing 
themselves  of  that  means  for  the  investigation  of  truth,  because 
other  juries  might,  from  want  of  education,  be  disqualified  from 
so  doing ;  if  some  men  are  blind,  that  is  no  reason  why  all 
others  should  have  their  eyes  put  out.  Nor  is  the  second  objec- 
tion very  formidable  :  it  is  not  always  easy  to  obtain  unfair 
specimens,  and  should  such  be  produced,  it  would  be  competent 
to  the  opposite  party  to  encounter  them  with  true  ones."  The 
first  objection  Mr.  Best  regards  as  having  more  force  ;  though 
this  force,  he  argues,  is  much  diminished  by  the  statutes  author- 
izing either  party  to  call,  before  trial,  for  inspection,  for  papers 
in  his  opponent's  hands.  And  the  objection  is  still  further  weak- 
ened by  the  limitation  we  have  just  stated ;  that  no  test  paper, 
written  for  the  purpose,  can  be  introduced  as  a  standard.  The 
objection  of  secondariness,  which  is  not  noticed  by  Mv.  Best,  is 
still  less  tenable.  We  refuse,  for  instance,  to  compare  a  contested 
writing  with  a  series  of  uncontested  writings,  because  this  is  sec- 
ond hand  evidence.  But  why  any  more  second  hand  than  is  the 
evidence  of  a  witness  who  saw  the  alleged  writer  sign  his  name  to 
another  instrument,  and  who  now  comes  in  to  compare  his  recollec- 
tion of  the  other  instrument  with  the  litigated  writing  ?  Suppose, 
for  instance,  a  servant,  with  no  especial  aptitude  or  practice  in 
examining  handwriting,  sees  his  master  sign  a  check,  and  is  then 
called  to  compare  a  litigated  writing  with  his  recollection  of  that 
which  he  saw  his  master  write  ?  His  basis  of  comparison,  in  this 
case,  is  a  mere  impression ;  an  impression  made  on  a  mind  with 
almost  as  little  susceptibility  for  receiving  and  retaining  the  dif- 
ferentia of  handwriting  as  has  a  stone  in  the  open  air  for  receiv- 
ing a  photographic  impress  of  a  landscape.  His  impression,  even 
if  tolerably  accurate,  is  peculiarly  open  to  be  defaced  by  time  or 
deformed  by  interest.  He  cannot  be  tested  on  cross-examina- 
tion as  to  the  grounds  of  this  impression,  because  he  has  no 
language  to  express  the  minuter  shades  of  identification  and 
distinction  in  such  matters,  even  if  he  had  the  capacity  to  take 
in  these  shades.  On  the  other  hand,  the  expert  who  takes  an 
uncontested  writing  as  a  test,  takes,  not  a  second  hand  recollec- 
tion of  a  thing,  but  the  thing  itself,  and  applies  to  it  faculties 
which  are  so  cultivated  as  to  be  able  not  only  to  detect  the  subtle 
idiosyncrasies  which  the  non-literary  man  cannot  observe,  but  to 
686 


CHAP.  IX.] 


PROOF   OF  HANDWRITING. 


[§  717. 


explain  these  idiosyncrasies,  by  putting  the  writings  side  by  side, 
to  the  court  and  jury.  Or,  dropping  the  expert,  and  supposing 
the  comparison  to  be  made  by  court  and  jury,  it  cannot  be 
doubted  that,  if  we  compare  the  average  of  witnesses  called  to 
speak  from  their  recollections  of  another's  writing,  and  the  aver- 
age of  judges  and  jurors,  we  must  conclude  that  the  latter  are  at 
least  as  capable  as  the  former  of  forming  an  unbiased  and  intelli- 
gent judgment  as  to  the  similarity  of  hands.  The  question,  then, 
comes  down  to  this.  Which  is  the  most  secondary  of  the  two 
bases  of  comparison,  —  the  writing  produced  in  court,  or  the  wit- 
ness's recollection  of  such  writing  ?  It  is  unreasonable  to  call  the 
recollection  primary  and  the  writing  secondary,  when  really  it  is 
the  recollection  that  is  secondary  and  the  writing  primary,^ 


^  "  All  evidence  of  handwriting,  ex- 
cept where  the  witness  sees  the  doc- 
ument written,  is  in  its  nature  com- 
parison. It  is  the  belief  which  a  wit- 
ness entertains  upon  comparing  the 
writing  in  question  with  an  exemplar 
in  his  mind  derived  from  some  pre- 
vious knowledge.  That  knowledge 
may  have  been  acquired,  either  by 
seeing  the  party  write,  in  which  case 
it  will  be  stronger  or  weaker  accord- 
ing to  the  number  of  times  and  the 
periods  and  other  circumstances  under 
which  the  witness  has  seen  the  party 
write,  but  it  will  be  sufficient  knowl- 
edge to  admit  the  evidence  of  the  wit- 
ness (however  little  weight  may  be 
attached  to  it  in  such  cases),  even  if 
he  has  seen  him  write  but  once,  and 
then  merely  signing  his  surname;  or 
the  knowledge  may  have  been  acquired 
by  the  witness  having  seen  letters  or 
other  documents  professing  to  be  the 
handwriting  of  the  party,  and  having 
afterwards  personally  communicated 
with  the  party  upon  the  contents  of 
those  letters  or  documents,  or  having 
otherwise  acted  upon  them  by  written 
answers  producing  further  correspond- 
ence or  acquiescence  by  the  party  in 
some  matter  to  which  they  relate;  or 
by  any  other  mode  of  communication 


between  the  party  and  the  witnesses, 
which,  in  the  ordinary  course  of  trans- 
actions of  life,  induces  a  I'easonable 
presumption  that  the  letters  or  docu- 
ments were  the  handwriting  of  the 
party ;  evidence  of  the  identity  of  the 
party  being  of  course  added  aliunde, 
if  the  witness  be  not  personally  ac- 
quainted with  him.  These  ai-e  the 
only  modes  of  acquiring  a  knowledge 
of  handwriting  which  have  hitherto, 
as  far  as  I  have  been  able  to  discover 
in  oui*  law,  been  considered  sufficient 
to  entitle  a  witness  to  speak  as  to  his 
belief  in  a  question  of  handwriting. 

"  In  both  the  witness  acquires  his 
knowledge  by  his  own  observation 
upon  facts  coming  under  his  own  eye, 
and  as  to  which  he  does  not  I'ely  on 
the  information  of  others ;  and  the 
knowledge  is  usually,  and  especially 
in  the  latter  mode,  acquired  incident- 
ally, and,  if  I  may  say  so,  uninten- 
tionally, without  reference  to  any  par- 
ticular object,  person,  or  document." 
Patterson,  J.,  Doe  i'.  Suckermorc,  5 
A.  &  E.  730. 

Mr.  Chabot's  expo-'^ition  of  the  hand- 
writing of  Junius  will  illustrate  the 
value  of  this  evidence.  Sec,  also,  the 
fac-similcs  of  Junius's  writing  in  the 
fourth  volume  of  the  Chatham  Corre- 

687 


§  718.] 


THE   LAW   OF   EVIDENCE. 


[rook  II. 


§  718.  By  th^  Roman  huv,  the  duty  of  comparison  of  hands 
Experts  is  properly  assignable  to  experts.^  In  our  own  law,  an 
t^"e'sT'^'°  expert,  apart  from  the  vexed  question  of  comparison 
writings.  Qf  hands,  is  admissible  to  determine  whether  a  con- 
tested writing  is  feigned  or  natural  ;2  though  in  absence  of  evi- 
dence on  behalf  of  the  party  charged  that  the  signature  is 
simulated,  an  expert  will  not  be  received  to  prove  it  was  not 
simulated.^     So  experts  are  permitted  to  testify  as  to  the  period 


spondence,  and  a  very  ingenious  article 
in  the  London  Times  of  May  22,  1871. 

Nowhere,  however,  has  the  value 
of  this  kind  of  evidence  been  better 
shown  than  in  Chief  Justice  Cock- 
burn's  masterly  charge  in  the  Ticli- 
borne  trial,  R.  v.  Castro,  Charge,  ii. 
170  et  seq.,  to  which  the  reader  is 
particularly  referred. 

EiTors  of  spelling  may  be  used  to 
prove  identity  of  authorship.  R.  r. 
Castro,  Charge  of  Cockburn,  C.  J.;  U. 
S.  V.  Chamberlain,  12  Blatchf.  390; 
Com.  r.  Coe,  115  Mass.  481. 

1  L.  20,  c.  iv.  21. 

2  Sweetzer  v.  Lowell,  33  Me.  448; 
Withee  v.  Row,  45  Me.  571;  Moody  y. 
Rowell,  17  Pick.  490;  Com.  v.  Web- 
ster, 5  Cush.  295;  Demerritt  v.  Ran- 
dall, 116  Mass.  331,  quoted  infra,  § 
721;  Lyon  v.  Lyman,  9  Conn.  55; 
Lansing  v.  Russell,  3  Barb.  Ch.  325 ; 
Goodyear  v.  Vosburgh,  63  Barb.  154; 
Vanwyck  i'.  McLitosh,  14  N.  Y.  439 ; 
Dubois  V.  Baker,  30  N.  Y.  355  ;  Peo- 
ple V.  Hewitt,  2  Park.  C.  R.  20  ;  Hub- 
ley  V.  Vanhorne,  7  S.  &  R.  185  ; 
Calkins  v.  State,  14  Ohio  St.  222; 
Jones  V.  Finch,  37  Miss.  461. 

3  Kowing  V.  Manly,  49  N.  Y.  193  ; 
S.  C.  57  Barb.  179,  qualifying  People 
V.  Hewitt,  2  Parker  C.  R.  20.  See, 
also,  to  same  effect,  Merchant's  Will, 
1  Tucker  (N.  Y.),  151.  See  People 
V.  Spooner,  1  Denio,  343. 

In  Fisher  v.  Hoffman,  2  Weekly 
Notes  of  Cases,  18,  which  was  a  suit 
by  a  payee  against  the  maker's   ex- 

688 


ecutor,  the  note  was  admitted  in  evi- 
dence, though  over  a  figure  in  the  date 
another  had  been  written,  and  though 
the  statute  of  limitations  would  have 
barred  the  suit  if  the  original  figure 
had  been  correct.  Evidence  was  ad- 
mitted of  one  who  saw  the  plaintiff 
offer  a  note  of  similar  amount,  which 
he  then  said  he  had  dated  the  same 
day  as  the  note  in  evidence,  to  the 
maker.  The  witness  then  heard  the 
maker  write,  as  he  supposed,  signing 
the  note,  which  looked  like  the  one  in 
suit.  Expert  testimony  was  admitted 
to  show  that  the  body  of  the  note  and 
the  date  had  been  written  by  one  per- 
son at  the  same  time.  It  was  held 
that  the  above  evidence  was  properly 
admitted. 

"The  testimony,"  said  the  court, 
"  of  persons  expert  in  the  examina- 
tion of  signatures,  in  detecting  the 
feigned  from  the  true,  has  its  most  apt 
application  in  a  case  such  as  this, 
where  the  purpose  was  to  detect  an 
alleged  forgery,  or  to  corroborate  a 
genuine  signature  by  the  application 
of  skilful  tests  to  the  face  of  the  pa- 
per." 

Evidence  by  an  expert,  however, 
that  a  writing  is  not  simulated,  can- 
not be  received  until  simulation  is  set 
up  on  the  other  side. 

"  We  think  that  the  evidence  of- 
fered to  prove  that  the  order  produced 
by  the  defendants  was  not  in  a  simu- 
lated handwriting  was  properly  re- 
jected.    The  plaintiff  had  not  intro- 


CHAP.  IX.] 


TESTING  HANDWRITING. 


[§  718. 


to  which  a  writing  may  be  assigned ;  ^  as  to  the  nature  of  the 
ink  or  other  material  used  ;  ^  wliether  a  certain  writing  shows 
comparative  ease  and  facility ;  ^  whether  certain  figures  in  a 
check  have  been  changed  ;  ^  what  is  the  difference  between  the 
substance  of  an  instrument  and  a  forged  addition  ;  ^  whether 
certain  words  were  written  before  a  paper  was  folded  ;^  what  is 
the  meaning  of  certain  illegible  marks  or  signs  ;'^  whether  tbe 
whole  of  an  instrument  was  written  by  the  same  hand,  with  the 
same  pen  and  ink,  and  at  the  same  time;^   whether  a  certain 


duced  any  evidence  to  show  that  it 
was  in  a  simulated  handwriting,  but 
had  testified  to  the  fact  that  it  was 
not  written  by  him.  It  was  incumbent 
upon  the  defendants  to  prove  that  the 
order  was  in  tlie  handwriting  of  the 
plaintiff;  and  we  do  not  think  that,  as 
the  evidence  stood,  the  opinion  of  an 
expert,  that  the  signature  was  not  in 
a  simulated  hand,  was  competent  for 
the  purpose  of  establishing  that  it  was 
the  plaintiff's.  In  the  cases  cited,  3 
B.  Ch.  325,  and  17  Pick.  490,  for  the 
purpose  of  proving  that  a  mark  or  sig- 
nature was  not  genuine,  evidence  of 
experts  was  admitted,  to  show  that  the 
writing  was  simulated.  The  only  case 
cited  in  wliich  evidence  was  admitted 
to  show  that  the  writing  was  not  sim- 
ulated is  that  of  The  People  v.  Hewit, 
2  Park.  Cr.  R.  20,  where,  on  a  trial 
of  an  indictment  for  forgery,  the  pris- 
oner was  allowed  to  prove,  by  an  ex- 
pert, that  the  signature  was  not  in  a 
simulated  hand.  Whatever  effect  might 
be  given  to  such  evidence,  in  a  crimi- 
nal trial,  for  counterfeiting  or  forgery, 
as  to  which  we  express  no  opinion,  wc 
do  not  think  it  competent  for  the  pur- 
pose of  proving  the  genuineness  of  a 
signature  against  a  party  sought  to  be 
chai'ged  thereby."  llapallo,  J.,  Kow- 
ing  V.  Manly,  49  N.  Y.  203. 

1  Doe  V.  Suckermorc,  5  A.  &  E.  703; 
R.  V.  Williams,  8  C.  &  P.  434  ;  Tracy 
Peerage,   10  CI.  &  Fin.  154;  Davis  v. 
voi>.  I.  44 


Mason,  4  Pick.  15G.     See  People  v. 
Spooner,  1  Denio,  343. 

2  Dubois  V.  Baker,  30  N.  Y.  355. 

8  Demerritt  v.  Randall,  116  Mass. 
331,  quoted  infra,  §  721. 

*  Nelson  v.  Johnson,  18  Ind.  329. 

5  Hawkins  v.  Grimes,  13  B.  Mon. 
258;  though  see  Daniel  v.  Toney,  2 
Mete.  (Ky.)  523. 

^  Bacon  v.  Williams,  13  Gray,  525. 

'  Stone  V.  Hubbard,  7  Cush.  595; 
Collender  v.  Dinsmore,  55  N.  Y.  200. 

8  Quinsigamond  Bk.  v.  Hobbs,  11 
Gray,  250;  Fulton  v.  Hood,  34  Penn. 
St.  365.  Sec  Jewett  v.  Draper,  6 
Allen,  434. 

"  The  fourth  assignment  of  error 
is,  that  the  court  erred  in  admitting 
the  testimony  of  so-called  experts 
in  regard  to  receipts  which  were  in 
evidence.  It  was  alleged,  and  direct 
evidence  was  given  by  the  plaintiff 
below  to  prove,  that  the  receipts  had 
been  altered,  and  then  experts  were 
offered  to  show  that  these  alterations 
were  not  made  at  the  same  time 
with  the  body  of  the  receipt.  It  was 
ruled  in  Fulton  v.  Hood,  10  Ca- 
sey, 365,  that  the  testimony  of  ex- 
perts is  receivable,  in  corroboration 
of  positive  evidence,  to  prove  that,  in 
their  opinion,  the  whole  of  an  instru- 
ment was  written  by  the  .same  hand, 
with  the  same  pen  and  ink,  and  at  the 
same  time.  This  case  is  indeed  the 
converse  of  that,  but  the  principle  is 

689 


§  "^is-] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


bank  note  is  counterfeit,^  and  for  this  purpose  business  men,  long 
familiar  with  the  notes,  can  be  called ;  ^  whether  certain  words 
were  written  over  others ;  ^  and  as  to  the  date  and  meaning  of 
certain  words  upon  an  erasure.^  It  has,  however,  been  held 
inadmissible  to  ask  an  expert  as  to  a  remote  contingency  as  to 
which  no  special  professional  experience  is  needed  to  speak  ;  ^ 
nor  can  an  expert  be  examined  as  to  how  far  a  person  may  im- 
prove his  handwriting  in  a  given  time.^ 

§  719.  When  comparison  of  hands  is  permitted,  an  expert  can 
be  called  to  make  such  comparison.'^  It  has,  however,  been  said 
that  an  expert  cannot,  as  to  an  ancient  writing,  be  admitted  to 
give  his  conclusion  from  a  comparison  of  hands, ^  though  if  no  other 
proof  is  attainable  such  should  be  received  for  what  it  is  worth.^ 


undoubtedly  the  same,  whether  the  ev- 
idence is  of  experts  to  attack  or  sup- 
port tlie  instrument."  Sharswood,  J., 
Ballantine  i'.  White,  77  Penn.  St.  25. 

1  Jones  V.  Finch,  37  Miss.  461. 

2  State  t'.  Cheek,  13  Ired.  L.  114. 
8  Dubois  V.  Baker,  30  N.  Y.  355. 

*  Ibid.  ;  and  S.  C.  40  Barb.  55G; 
Vinton  v.  Peck,  14  Mich.  287;  though 
see  Swan  v.  O'Fallon,  7  Mo.  231. 

6  Thayer  r.  Chesley,  55  Me.  393. 

^  McKeone  v.  Barnes,  108  Mass. 
344. 

'  Benth.  Jud.  Ev.  iii.  599;  U.  S. 
V.  Keen,  1  McLean,  429;  U.  S.  r. 
Chamberlain,  12  Blatch.  390  ;  Ham- 
mond's case,  2  Greenl.  33;  Woodman 
r.  Dana,  52  Me.  9;  Furber  v.  HUliard, 
2  N.  n.  480;  Carr  v.  State,  5  N.  H. 
371;  State  v.  Shlnborn,  46  N.  H.  497; 
State  I'.  Ravelin,  1  Chipm.  295;  State 
V.  Ward,  39  Vt.  225;  Moody  v.  Row- 
ell,  17  Pick.  490;  Com.  v.  Riley, 
Thacher's  C.  C.  67;  Amherst  Bank  v. 
Root,  2  Mete.  522;  Com.  v.  AVilliams, 
105  Mass.  62;  Lyon  v.  Lyman,  9 
Conn.  65;  People  r.  Caryl,  12  Wend. 
647;  Phoenix  Bk.  v.  Philip,  13  Wend. 
81;  Finch  v.  Gridley,  25  Wend.  469; 
Roe  V.  Roe,  40  N.  Y.  Sup.  Ct.  1; 
Jackson  v.  Murray,  Anthon,  105; 
West  V.  State,  22  N.  J.  L.  212  ;  Com. 
690 


V.  Smith,  6  S.  &  R.  568 ;  Hubley  v. 
Vanhorne,  7  S.  &  R.  185;  Lodge  v. 
Phipher,  11  S.  &  R.  333:  Powers  v. 
Frick,  2  Grant  (Penn.)  Cas.  306  ; 
Svveigart  v.  Richards,  8  Penn.  St.  436; 
Burkholder  v.  Plank,  69  Penn.  St. 
235  ;  Ballantine  v.  White,  77  Penn. 
St.  20.  Contra,  Titford  v.  Knott,  2 
Johns.  Cas.  211;  Bank  of  Penn.  v. 
Haldeman,  1  Penn.  161  ;  Niller  v. 
Johnson,  27  Md.  6;  Huston  v.  Schin- 
dler,  46  Ind.  38;  State  v.  Harris,  5 
Ired.  287;  Com.  v.  Tutt,  2  Bailey,  44; 
Bird  t'.  Miller,  1  McM.  125;  Bennett 
V.  Matthewes,  5  S.  C.  478  ;  Johnson 
V.  State,  35  Ala.  370;  Moye  v.  Hern- 
don,  30  Miss.  110;  Hanley  v.  Gandy, 
28  Tex.  211. 

"  It  may  be  considered  as  well  set- 
tled in  this  state  (Pennsylvania),  by 
Fulton  V.  Hood,  10  Casey,  365;  and 
Travis  v.  Brown,  7  Wright,  9,  that 
after  direct  evidence  has  been  given 
on  the  subject  of  handwriting,  the  ev- 
idence of  experts  is  admissible  in  cor- 
roboration." Sharswood,  J.,  Burk- 
holder V.  Plank,  69  Penn.  St.  235; 
S.  P.,  Ballentine  v.  White,  77  Penn. 
St.  20. 

8  Fitzwalter  Peerage  Case,  10  CI. 
&F.  193.     Supra,  §704. 

9  Supra,  §  704. 


CHAP.  IX.]  TESTING   HANDWRITING.  [§  721. 

§  720.  Photographers,  who  have  been  accustomed  to  scrutinize 
handwritincc  in  reference  to  forgeries,  and  have  been  in 

.  .  .  .  Photog- 

the  habit  of  using  photographic  copies  for  this  purpose,    raphers 
may  be  examined  as  experts  in  questions  of  "forgery,    ceived  as 
even  though  their  opinion  is  founded  partly  on  photo-   ^^P*^*"'^- 
grapliic   copies,  which  they  have  themselves   made,   and  which 
have  been  put  in  evidence.^     To  enable,  however,  such  photo- 
graphic copies  to  be  put  in  evidence,  their  accuracy  and  fairness 
must  be  proved. ^ 

§  721.    An    expert   is   open    to   cross-examination    as    to   his 
qualifications,^  and  he  may  be  probed  by  test  papers   Experts  in 
that  may  be  presented  to  him.^     In  a  Massachusetts   n^av'^f 
case,  finally  decided  in  1875,  it  appeai-ed  that  on  the   cmss-ex- 

,  .  .  amined  as 

trial,  which  was  as  to  the  genuineness  of  a  will  by  a   to  skill. 

woman  named  Ireland,  the  appellants  put  in  evidence  a  prior 
will  and  codicil  of  the  alleged  testatrix,  and  then  called  experts 
in  handwriting,  who  testified  that  in  their  opinion,  formed  by 
comparison  of  the  signatures  in  these  instruments,  and  in  other 
instruments  proved  to  have  been  signed  by  the  testatrix,  she  did 
not  sign  the  second  will,  which  was  directly  in  issue  ;  that  it  was 
not  her  signature,  and  that  it  was  not  signed  by  the  same  per- 
son who  signed  the  other  instruments  in  evidence.  One  of 
these  experts  was  asked,  upon  comparing  the  signatures  with 
the  other  instruments  in  evidence,  and  referred  to  as  stand- 
ards with  the  signature  to  the  pi-oposed  will,  "  Which  exhibits 
the  greater  ease  and  facility  of  writing?"  His  answer  was, 
"  The  signature  to  the  will  shows  the  most  ease,  the  most  skill 
and  cultivation  of  the  art  of  penmanship."  This  question  and 
answer  were  admitted  under  objection.  Another  expert  testi- 
fied, under  objection,  that  the  signature  to  the  will  was  not, 
in  his  opinion,  written  by  the  same  hand  as  the  signatures  to  the 
other  writings  ;  that  it  was  entirely  unlike,  and  could  not  have 
been  written  by  the  same  hand.  Other  experts,  witnesses  for 
the  appellants,  were  asked,   under  objection,  similar  questions, 

^  Marcy  v.  Barnes,   IG   Gray,  IGl.     30,  it  was  fuIlmI  that  such  copies  could 
See,   however,   Taylor  Will  case,    10     not   bo  put  in   evideiieo.     See  supra. 
Abb.  (N.  Y.)  Pr.  N.  S.  301;  Tyler  v.     §  G7G. 
Todd,  3G  Conn.  218.  »  See  supra,  §§  438-151. 

«  Ibid.     In  Tome  v.  R.  R.  30  Md.         ♦  Supra,  §  710. 

691 


§  722.]  THE   LAW   OF   EVIDENCE.  [BOOK  II. 

and  gave  substantially  the  same  answers.  In  the  cross-examina- 
tion of  one  of  the  experts  for  the  appellants,  wlio  had  given  his 
evidence  in  the  same  way  against  the  signature  of  the  will,  he 
was  asked  whether  he  had  compared  the  signature  with  the  rest 
of  the  writing  on  and  in  the  will.  He  said  he  had  not.  He  was 
asked  further  to  look  at  and  examine  the  rest,  and  state  whether 
the  handwriting  in  the  signature  to  the  will  was  the  same  or 
similar  to  any  of  the  rest  found  on  the  instrument,  or  in  the  body 
of  it.  Hfe  declined  to  express  an  opinion  without  the  opportu- 
nity for  a  critical  examination.  He  was  asked  repeatedly  on  the 
cross-examination  to  look  at  the  body  of  the  will  and  compare 
it  with  the  handwriting  upon  the  stand,  or  take  it  and  look  at 
it  so  as  to  express  an  opinion  on  the  identity  of  the  hands ;  but 
he  repeatedly  declined  doing  so,  stating  that  he  could  not  form 
an  opinion  without  a  critical  examination  of  the  instrument. 
The  question  was  repeated  again,  and  the  judge  ruled  that  it 
should  not  be  again  put,  and  declined  to  order  the  witness  to 
answer  further,  to  which  exceptions  were  alleged.  The  executor 
proved  in  whose  handwriting  the  remainder  of  the  instrument 
was.  The  jury  found  for  the  appellants,  and  the  executor  al- 
leged exceptions.  These  exceptions,  however,  were  overruled. ^ 
§  722.  Elsewhere  2  the  importance  of  guarding  expert  testi- 
mony has  been  discussed  ;  and  it  is  obvious  that  the 
Testimony  i.        .  r     i         i       i  t    •        c  t        • 

of  experts  application  of  the  checks  suggested  is  oi  pecuhar  im- 
closeiy  portance  in  questions  of  identity  of  handwritings.  If 
scrutinized.  ^-^^  expert  Can  produce  in  court  the  writings,  and  ex- 
plain the  grounds  of  his  conclusions,  the  difficulties  are  much 
reduced  ;  but  it  must  be  remembered  that  there  are  few  branches 
of  law  on  which  interests  so  momentous  (e.  g.  devolution  of  large 
estates,  convictions  of  forgery)  depend  upon  tests  so  exquisitely 

1  "  The  experts,"  said  Gray,  C.  J.,  far  the  witness  should  be  compelled 

"  were  rightly  permitted  to  testify  to  to  answer,  were   matters  within   the 

their  opinion  of   the  genuineness   of  discretion  of  the  presiding  judge,  and 

the  signature  of  the  testatrix,  and  to  are  not  subjects  of  exception."     De- 

their  reasons  for  such  opinion.  Moody  merritt  v.  Randall,  116  Mass.  331. 
V.   Rowell,   1 7   Pick.  490  ;    Common-         That  an  expert  must  have  for  this 

wealth  r.  Webster,  5  Cush.  295  ;  Keith  purpose  special  aptitude,  see  Goldstein 

V.  Lothrop,  10  Cush.  453.    How  many  v.  Black,  50  Cal.  462. 
times  the  same  question  should  be  re-        *  Supra,  §  454. 
peated  on  cross-examination,  and  how 

692 


CHAP.  IX.] 


TESTING  HANDWRITING. 


[§  722. 


delicate  as  those  applied  to  Iiaiidwriting.  It  is  well  known  that 
in  cases  of  peculiar  difficulty,  when  the  difference,  if  there  be 
any,  between  two  handwritings  is  only  noticeable  by  perceptions 
the  most  sensitive,  experts,  no  matter  how  conscientious,  often 
take  unconsciously  such  a  bias  from  the  party  employing  them 
as  to  give  to  their  judgment  the  almost  infinitely  slight  impulse 
that  turns  the  scale  ;  nor  is  it  strange  that  in  an  instrument  so 
delicate,  aberrations  from  its  true  course  should  be  produced  by 
attractions  or  repulsions  otherwise  unappreciable.  If  an  expert 
could  be  hermetically  sealed  in  from  such  extraneous  influences, 
his  judgment  might  be  depended  on  at  least  for  impartiality. 
This,  however,  is  imjaracticable.  A  jury  is  bound,  therefore,  to 
accept  the  opinion  of  an  expert  as  to  handwriting,  even  when 
uncontradicted,  as  an  argument  rather  than  a  proof ;  ^  and  to 
make  allowance  for  all  the  disturbing  influences  by  which  the 
judgment  of  the  expert  may  be  moved.^ 


1  See  Tracy  Peerage,  10  CI.  &  Fin. 
191;  Gurney  i\  Langlands,  5  B.  &  A. 
330;  R.  V.  Crouch,  supra,  §  707;  Cowan 
V.  Beall,  1  MacArthur,  270;  Borland 
V.  Walrath,  33  Iowa,  130. 

2  In  a  suit  tried  in  1876,  before  the 
English  probate  court,  Mr.  Nether- 
clift,  an  "expert"  in  handwriting, 
swore  definitely  and  peremptorily  that 
a  will  was  forged,  to  the  genuineness 
of  Avhich  will  the  attesting  witnesses 
deposed.  The  jury,  without  troubling 
the  judge  to  sum  up,  gave  a  verdict 
for  the  validity  of  the  will,  and  the 
judge  declared  his  opinion  that  an  un- 
founded and  reckless  charge  of  forg- 
ery had  been  preferred.  It  was  pain- 
ful, lie  added,  to  reflect  on  the  enor- 
mous expense  that  had  been  incurred 
because  the  "experts"  thought  that 
their  opinion,  that  a  man  did  not  make 
a  particular  signature,  ought  to  out- 
weigh any  amount  of  positive  testi- 
mony that  he  did  so.  Subsecpiently, 
at  the  Guildhall  police  court,  on  Mr. 
Netherclift  giving  his  opinion  that  the 
signatures  to  certain  cheeks  were  gen- 
uine, counsel  proceeded   to  cross-ex- 


amine him  as  to  what  had  been  said 
by  Sir  James  Hannen  in  reference  to 
Davis's  will.  Mr.  Netherclift  answered 
that  he  had  read  the  remarks  of  Sir 
James  Hannen,  and  he  wished  to  say 
something  thereupon.  The  magis- 
trate said  he  must  decline  to  hear  any- 
thing about  any  case  that  was  not  be- 
fore the  court;  but  Mr.  Netherclift 
persevered,  and  said  that  he  believed 
the  signature  to  that  will  to  be  "a 
rank  forgery,"  and  he  should  believe 
so  to  the  day  of  his  death.  Mr.  Sea- 
man having  been  an  attesting  witness 
to  the  will,  appropriated  these  words  to 
himself,  and  brought  an  action  of  slan- 
der for  them,  alleging  that  their  mean- 
ing was  that  he  had  been  guilty  of  forg- 
ing the  signature  to  the  will,  or  of  aid- 
ing and  abetting  that  olTence.  It  was 
urged  by  Mr.  Netherclift's  counsel 
that  under  the  circumstances  no  action 
could  be  maintained,  and,  therefore, 
that  the  judge  ought  to  direct  a  ver- 
dict for  the  defendant,  as  was  done  in 
the  case  of  Dawkins  i'.  Lord  Rokeby, 
4  F.  &  F.  80G.  But  Lord  Coleridge  pre- 
ferred to  let  the  case  go  to  the  jury, 

693 


§  723.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


§  723.  By  the  strict  rule  of  the  English  common  law,  Tvhen 
At  com-  there  are  subscribing  witnesses  to  an  instrument,  such 
•ubscrib-  witncsses  should  be  called  to  prove  its  execution,  or 
nefsTnust  their  absence  should  be  duly  accounted  for.^  The  stat- 
be  called,  i^tes  allowing  parties  to  be  witnesses  do  not  of  them- 
selves abrogate  this  rule.^  When  a  statute  requires  an  instru- 
ment to  be  subscribed  by  a  certain  number  of  competent  wit- 
nesses, these  witnesses  must  have  been  competent  at  the  time  of 
the  attestation.^ 


who  found  for  the  plaintiff  with  £50 
damages,  leave  being  reserved  to  the 
defendant  to  move  the  full  court  to  set 
aside  the  verdict.  The  judge  put  to 
the  jury  whether  the  words  complained 
of  were  spoken  "  in  the  course  of  giving 
evidence,"  or  whether  the  defendant's 
evidence  was  really  over,  and  he  made 
the  statement  "as  a  mere  volunteer. 
The  jury  found  against  the  defendant 
on  this  question,  which  was  treated  as 
decisive  of  the  case."  Saturday  Re- 
view, March  25,  1876.  On  the  case 
coming  up  before  the  court  in  banc,  it 
was  held  that  the  statement  was  privi- 
leged, and  that  the  action  would  not  lie, 
although  it  was  found  by  the  jury  that 
the  words  were  spoken  maliciously, 
and  not  in  good  fiiith  as  a  witness;  and 
though  the  judge  held  there  was  evi- 
dence to  justify  this  finding.  Seaman 
V.  Netherclift,  L.  E,.  1  C.  P.  D.  540; 
affirmed  finally  on  appeal,  Dec.  1876. 
1  Doe  V.  Durnford,  2  M.  &  Sel.  G2; 
Bowman  v.  Hodgson,  L.  R.  1  P.  &  D. 
862;  Citizens'  Bk.  v.  Steamboat  Co. 
2  Story,  16;  Pullen  v.  Hutchinson,  25 
Me.  249;  Foye  v.  Leighton,  24  N.  H. 
29;  Harding  v.  Cragie,  8  Vt.  508; 
Whitaker  v.  Salisbury,  15  Pick.  534  ; 
Barry  v.  Ryan,  4  Gray,  523;  Henry 
V.  Bishop,  2  Wend.  575;  King  v. 
Smith,  21  Barb.  158;  Walsh's  Will,  1 
Tucker  (N.  Y.),  132;  Corlies  v.  Van- 
note,  16  N.  J.  L.  324;  McMahan  v. 
McGrady,  5  Serg.  &  R.  314;  Boyer  v. 
Norris,  1  Harr.  (Del.)  22;  Handy  v. 
694 


State,  7  Har.  &  J.  42  ;  McCord  v. 
Johnson,  4  Bibb,  531 ;  State  v.  Chaney, 
9  Rich.  (S.  C.)  438;  Barber  i-.  Ter- 
rell, 54  Ga.  146  ;  Bennet  v.  Robinson, 
3  St.  &  Port.  227;  Chaplain  v.  Bris- 
coe, 19  Miss.  372  ;  Glasgow  v.  Ridge- 
ley,  11  Mo.  34;  Brock  v.  Sax  ton,  5 
Ark.  708  ;  Shepherd  v.  Goss,  1  Overt. 
(Tenn.)  487. 

Under  the  Englis-h  statute  it  is  still 
necessary  to  call  one  or  more  of  the 
subscribing  witnesses  to  prove  all  in- 
struments executed  under  powers, 
where  the  parties  creating  such  pow- 
ers have  thought  proi)er,  for  better 
security,  to  require  the  execution  to  be 
attested.     Taylor's  Ev.  §  1638. 

2  Hodnett  v.  Smith,  2  Sweeny  (N. 
Y.),  401;  S.  C.  10  Abb.  Pr.  N.  S.  86; 
41  How.  Pr.  190.  Sec  Weigand  v. 
Sichel,  4  Abb.  (N.  Y.)  App.  592; 
Bowling  V.  Hax,  55  Mo.  446;  Kalmes 
V.  Gerrish,  7  Nev.  31.    Infra,  §§  885-9. 

8  Best's  Ev.  §§  125,  305,  C07;  Goss 
tf.  Tracy,  1  P.  Wms.  289;  Bernett  v. 
Taylor,  9  Ves.  381;  Davis  v.  Din- 
woody,  4  T.  R.  678;  Sullivan  v.  Sulli- 
van, 106  Mass.  474  ;  Hamilton  v.  Mars- 
den,  6  Binn.  45. 

"  By  the  General  Statutes,  c.  92,  §  6, 
a  will  must  be  subscribed  by  three  or 
more  competent  witnesses.  They  must 
be  competent  at  the  time  of  the  attes- 
tation of  the  will.  By  the  common 
law,  it  was  a  settled  principle  that 
husbands  and  wives  could  not  in  any 
case  be  admitted  as  witnesses  for  and 


CHAP.  IX.]  DOCUMENTS  :   ATTESTING  WITNESSES. 


[§  725. 


§  724.  Matters   collateral   to   the   execution   of   a   document, 
however,  may  be  proved  independently  of  the  attesting 
witness.^     Thus  it  is  not  necessary  to  call  the  attesting   matters  do 

,.,,..  .  ,         not  requiro 

Witness  when   the  object  is  to  prove  a  receipt  at  the    attesting 
foot  of  a  document  which  has  attesting  witnesses,  the 
receipt  not  being  so  attested ;  ^  nor  to  prove  the  identity  of  one 
deed  with  another  ;  ^  nor  to  prove  any  preliminary  matter  which 
is  a  condition  precedent  to  calling  the  attesting  witnesses.'^ 

§  725.  The  rule  requiring  the  production  of  attesting  witnesses 
is  one  of  the  few  in  English  practice  which  the  court    So  to  ad- 
employs  for  its  own  instruction,  and  it  is  applied  irre-    tion  of  doc- 
spective  of  the  intentions  of  the  parties.    So  resolute  are   n"t''"iJen"* 
the  courts  in  insisting  on  this  rule,  that  in  cases  where   ^'^^'"^ .'*'"° 

'  .     .  attesting 

subscribing  witnesses  are  necessary,  a  party's  admission  witnesses, 
has  been  held  insufficient  to  dispense  with  the  production  of  the 
attesting  witness,  even  though  such  admission  be  made  in  open 
court ;  ^  or  by  answer  to  bill  of  discovery  ;  or  other  answer  under 
oath  ;  ^  or  even,  so  far  has  the  rule  been  pushed,  by  the  answers 
of  the  party  himself  when  called  as  a  witness  in  the  cause.'^  Yet 
a  party,  so  has  it  been  held  (somewhat  inconsistently  if  the  rule 


against  each  other,  independently  of 
the  question  of  interest.  None  of  our 
statutes  have  changed  the  rule  in  this 
respect  as  to  the  attestation  of  wills, 
and  the  rule  applies  to  such  attesta- 
tion. Davis  V.  Dinwoody,  4  T.  R. 
678  ;  Hatfield  t;.  Thorp,  5  B.  &  Aid. 
589  ;  Sullivan  v.  Sullivan,  106  Mass- 
474, 

"  As  (he  wife  of  the  testator  in  this 
case  was  not  a  competent  witness  when 
the  will  was  executed,  his  death  did 
not  make  her  competent."  Chapman, 
C.  J.,  Pease  v.  AUis,  110  Mass.  157. 

^  Fairfax  v.  Fairfax,  2  Cranch  C. 
C.  25;  Avers  v.  Ilewett,  19  Me.  281; 
Curtis  V.  Belknap,  21  Vt.  433;  Shoen- 
berger  v.  Hackman,  37  Penn.  St.  87. 

-  Milligan  v.  Mayne,  2  Cranch  C. 
C.  210. 

«  Planters'  Bank  v.  Willis,  5  Ala. 
7  70. 

*  See  supra,  §  78. 


5  Johnson  v.  Mason,  1  E^p.  89  ; 
Abbot  V.  Plumbe,  1  Dougl.  21G  ;  R. 
V.  Harringworth,  4  M.  &  Sel.  353; 
Doe  V.  Penfold,  8  C.  &  P.  53G;  Tur- 
ner V.  Green,  2  Cranch  C.  C.  202. 
See,  however,  Blake  v.  Sawin,  10 
Allen,  340;  Fox  v.  Reil,  3  Johns.  R. 
4  77;  Minard  v.  Mead,  7  Wend.  G8; 
Henry  v.  Bishop,  2  Wend.  575;  King 
V.  Smith,  21  Barb.  158;  Zerby  v.  Wil- 
son, 3  Ohio,  42  ;  Lands  r.  Crocker,  3 
Brev.  (S.  C.)  40;  Morgan  v.  Patrick, 
7  Ala.  185. 

6  Call  t'.  Dunning,  4  East,  53  ;  Kin- 
ney V.  Flynn,  2  R.  I.  319.  Sec  Hol- 
lenback  i-.  Fleming,  6  Hill  (N.  Y.), 
303  ;  Henry   ;;.  Bi^hop,  2  Wend.  505. 

7  Whyman  v.  Garth,  8  Ex.  R.  803 ; 
Story  V.  Lovett,  1  E.  D.  Smith,  153; 
Barry  v.  Ryan,  4  Gray,  523;  Brigham 
V.  Palmer,  3  Allen,  450.  See  White 
V.  Holliday,  20  Tex.  G79;  contra,  For- 
sythc  V.  Hardin,  62  Bl.  20G. 

695 


§  726.] 


THE   LAW   OF  EVIDENCE. 


[book  II. 


be,  as  is  alleged,  one  to  be  applied  inexorably  by  the  court),  may 
estop  himself  by  an  admission  of  execution  when  such  an  admis- 
sion is  made  part  of  an  agreement  for  mutual  iconcessions  with 
the  other  side.^  So  the  paying  money  into  court  on  one  of  the 
breaches  in  an  action  of  covenant,  relieves  the  plaintiff  from  call- 
ing an  attesting  witness,  even  though  non  est  factum  is  pleaded.^ 
The  party's  admission  is  available,  however,  when  due  attempts 
to  obtain  the  subscribing  witnesses  have  failed.^  And  where 
attesting  witnesses  are  not  necessary  to  the  validity  of  the  instru- 
ment, it  may  be  primd  facie  proved  by  the  admission  of  the 
party,  provided  such  admissions  are  clear  and  specific  as  to  the 
writing.^  The  same  rule  is  affirmed  in  England  by  the  Common 
Law  Procedure  Act.  And  such  admission  may  be  proved  infer- 
entially  as  well  as  directly.^ 

§  726.  Where  it  is  impossible  to  produce  an  attesting  witness. 
Absolute  then  the  law  permits  the  instrument  to  be  read  upon 
of'lvi'tli^esr  pi'oof  of  the  handwriting  of  the  witness.^  This  right 
fof  non"-'^  has  been  held  to  exist  where  the  witness  has  been 
production,   spirited  away  by  the  opposite  party  ;  "^  where  he  is  out 


^  Freeman  v.  Steggall,  14  Q.  B. 
203;  Bringloe  v.  Goodson,  5  Bing.  N. 
C.  738;  8  Scott,  71;  Laing  v.  Kaine, 
2  B.  &  P.  85.    See  infra,  §  1091. 

^  Randall  v.  Lynch,  2  Camp.  357. 

^  Kingwood  v.  Bethlehem,  1  Green 
(N.  J.),  221. 

*  Infra,  §§  1089-1096  ;  Nichols  v. 
Allen,  112  Mass.  23;  Hall  v.  Phelps, 
2  Johns.  R.  451  ;  Shaver  v.  Ehle,  16 
Johns.  R.  201  ;  Giberton  v.  Ginochio, 
1  Hilt.  (N.  Y.)  218;  Savage  w.  D'VVolf, 
1  Blatch.  343;  Daniel  v.  Ray,  1  Hill 
(S.  C),  32. 

5  AVatson  v.  Brewster,  1  Barr,  381  ; 
Harrington  v.  Gable,  2  Weekly  Notes 
of  Cases,  519  (1876).  In  the  latter 
case.  Woodward,  J.,  said:  "  With  the 
failure  of  the  attempt  to  prove  the 
execution  of  the  instrument  by  the 
subscribing  witness,  the  primary  source 
of  evidence  on  behalf  of  the  plaintiff 

had  been  exhausted A  resort 

to  secondary  evidence  to  lay  ground 

696 


for  the  admission  of  the  instrument, 
was  inevitable;  and  that  which  was 
given,  as  well  as  much  ofthat  which  was 
offered  and  rejected,  was  unobjection- 
able, for  it  carried  on  its  face  no  indi- 
cation that  better  evidence  could  have 
been  obtained There  is  no  dif- 
ference as  to  the  admissibility  of  this 
kind  of  evidence,  between  direct  ad- 
missions and  those  which  are  inciden- 
tal, or  made  in  some  other  connection, 
or  involved  in  the  admission  of  some 
other  fact." 

«  See  R.  I'.  St.  Giles,  1  E.  &  B.  G42. 
So  as  to  wills,  when  witness  is  de- 
ceased. 1  Redfield  on  Wills,  §  20; 
Nickersonr.Buck,  12  Cush.  332;  Hays 
V.  Harden,  6  Barr,  409 ;  Greenough  v. 
Greenough,  11  Penn.  St.  (1  Jones) 
489  ;  Vernon  v.  Kirk,  30  Penn.  St. 
(6  Casey)  218. 

^  Clanmorris  v.  Mullen,  Craw.  &  D. 
Abr.  Cas.  8  ;  Spooner  v.  Payne,  4  C. 
B.  328. 


CHAP.  IX.] 


DOCUMENTS:   ATTESTING   WITNESSES. 


[§  726. 


of  the  jurisdiction  of  the  court ;  ^  where  he  becomes  interested 
so  as  to  be  incompetent ;  ^  though  it  is  otherwise  when  the  inca- 
pacity is  caused  by  the  party  calling  the  witness,-^  or  when  the 
attesting  signature  is  illusory.*  So  secondary  evidence  may  be 
received  when  the  subscribing  witness  cannot  be  found  after  dili- 
gent search  ;  ^  and  the  degree  of  diligence  Avhich  may  be  proved 
in  order  to  let  in  secondary  evidence  varies  with  the  circumstances 
of  the  case.^    As  to  instruments  executed  in  foreign  lands,  the  at- 


^  Barnes  v.  Trompowskj',  7  T.  R. 
265;  Prince  v.  Blackburn,  2  East,  250; 
Glubb  V.  Edwards,  2  M.  &  Rob.  300; 
Dunbar  v.  Marden,  13  N.  H.  311  ; 
Gould  V.  Kelley,  16  N.  H.  551  ;  Beat- 
tie  V.  Hilliard,  55  N.  H.  436;  Valen- 
tine V.  Piper,  22  Pick.  85  ;  Van  Doren 
V.  Van  Doren,  2  Pen.  (N.  J.)  745  ; 
Den  i;.  Van  Houten,  5  Halst.  270  5 
McDerniott  v.  McCormick,  4  Harr. 
(Del.)  543  ;  Dorsey  v.  Smith,  7  Har. 
&  J.  345;  Richards  v.  Skiff,  8  Oh.  St. 
586;  Wiley  r.  Bean,  6  111.  302;  Bal- 
linjrer  r.  Davis,  29  Iowa,  512;  Selby 
V.  Clark,  4  Hawks,  265  ;  Edwards  v. 
Sullivan.  8  Ired.  L.  302  ;  Price  v.  Mc- 
Gee,  1  Brev.  (S.  C.)  373;  Bussey  r. 
Wliitaker,  2  Nott  &  M.  374;  Foote 
V.  Cobb,  18  Ala.  585;  Little  i'.  Cliaii- 
vin,  1  Mo.  626;  Clardy  t».  Richard.'^on, 
24  Mo.  295  ;  IMcGarrity  v.  Byington, 
12  Cal.  426;  Jackson  v.  R.  R.  14 
Cal.  18  ;  Teal  v.  Sevier,  26  Texas, 
516. 

"  In  Price  v.  The  Earl  of  Torrington, 
1  Sm.  Lead.  Cases,  139,  Am.  ed.  184  7, 
are  collected  a  large  number  of  Amer- 
ican decisions  to  the  point,  that,  when 
entries  are  made  in  a  shopkeeper's 
book  of  accounts  by  a  clerk  who  is 
without  the  limits  of  the  state  at  the 
time  of  the  trial,  in  an  action  to  re- 
cover for  the  goods  so  ch.arged,  the 
charges  may  be  read  in  evidence  upon 
proof  of  his  handwriting,  the  same  as 
if  lie  were  dead  ;  and  in  Dunbar  i'. 
Marden,  13  N.  IL  311,  it  was  held, 
that,  where  a  subscribing  witness  re- 


sides without  the  limits  of  the  state, 
he  is  beyond  the  reach  of  the  process 
of  the  court  in  the  sense  in  which 
those  words  are  used,  and  evidence 
of  his  handwriting  may  be  produced 
in  proof  of  the  execution  of  the  instru- 
ment. See,  also,  1  Or.  Ev.  §  572." 
Smith,  J.,  Beattie  v.  Hilliard,  55  N. 
H.  436. 

2  Goss  V.  Tracy,  1  P.  Wms.  289; 
Ilaynes  v.  Rutter,  24  Pick.  242;  Pack- 
ard V.  Dunsmore,  1 1  Cush.  283  ;  Ham- 
ilton V.  Marsden,  6  Binn.  45;  Kcefer 
V.  Zimmerman,  22  IMd.  274;  Umphreys 
V.  Hendricks,  28  Ga.  157;  McKinley 
t".  Irvine,  13  Ala.  681;  Robertson  v. 
Allen,  16  Ala.  106;  Tinnin  r.  Price, 
31  Miss.  422.     See  supra,  §  178. 

*  Paterson  v.  Schenck,  3  Green  (N. 
J.),  434. 

*  Fassett  v.  Brown  Peake's  Cases, 
24. 

5  Falmouth  v.  Roberts,  9  ]\I.  &  W. 
469;  Parker  v.  Iloskins,  2  Taunt.  223; 
Burtr.  Walker,  4  B.  &  A.  697;  Clarke 
r.  Courtney,  5  Pet.  319;  Spring  v.  Ins. 
Co.  8  Wheat.  269;  Mills  v.  Twist,  8 
Johns.  121  ;  Henry  i".  Bi^hop,  2  Wen- 
dell, 575  ;  Lan^ing  v.  Chamberlain, 
8  Wend.  620  ;  Clark  v.  Sanderson,  3 
Binn.  192;  Tranmull  r.  Rul)crts,  1 
McMull.  305;  Brown  i-.  Ilieks,  1  Ark. 
232. 

«  Ibid.;  Cunliffe  v.  Sefton,  2  East, 
183;  Morgan  v.  Morgan,  9  Bing.  359; 
Wilman  r.  Worrall,  8  C.  &  P.  380; 
Austin  V.  Rumsey,  2  C.  &  Kir.  736; 
Spring  V.  Insur.  Co.  8  Wheat.  208; 
G97 


§  727.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


testing  witnesses,  it  lias  been  ruled,  need  not  be  produced,  it  be- 
ing enough  to  prove  the  handwriting  of  the  witness.^  Of  course 
insanity ,2  and  death,^  abundantly  explain  non-production.  But 
if  there  be  two  witnesses,  it  will  not  be  sufficient,  so  long  as  one 
of  them  is  alive,  sane,  free  from  permanent  sickness,  within  the 
jurisdiction  of  the  court,  and  capable  of  being  found  by  diligent 
inquir}',  to  prove  the  signature  of  the  other  who  is  dead.^  The 
practice  when  the  subscribing  witness  has  made  a  mark  has  been 
already  noticed.^ 

§  727.  The  secondary  evidence  which  is  received,  after  the 
non-production  of  the  witness  is  satisfactorily  accounted 
for,  consists,  ordinarily,  of  proof  of  his  handwriting.^ 
Such  proof  may  be  inferential."  Proof  of  the  hand- 
writing of  the  witness,  in  such  case,  is  sufficient  with- 
out proving  the  handwriting  of  the  party ;  ^  but  the  latter  may 


Secondary 
evidence 
consists 
of  proof 
of  liand- 
wriliniT. 


Sherman  r.  Transp.  Co.  31  Vt.  1G2; 
Van  Dyne  v.  TLayre,  19  Wend.  162; 
Mills  V.  Twist,  8  Johns.  R.  121  ;  Truby 
V.  Byers,  6  Penn.  St.  347;  Tarns  v. 
Hitner,  9  Penn.  St.  441  ;  Clark  v. 
Boyd,  2  Oh.  .56  ;  Gordon  v.  Miller,  1 
Ind.  531;  Powell  v.  Hendricks,  3  Cal. 
427;  Landers  v.  Bolton,  26  Cal.  393; 
Holman  r.  Bank,  12  Ala.  369;  Nicks 
I'.  Rector,  4  Ark.  251;  Delony  v.  De- 
lony,  24  Ark.  7. 

1  McMinn  v.  O'Connor,  27  Cal.  238; 
McMinn  v.  Whelan,  27  Cal.  300.  See 
Tyngr.  R.  R.  12  Cush.  277. 

2  Bernett  v.  Taylor,  9  Ves.  381; 
Cnrrie  v.  Child,  3  Camp.  283;  Neely 
t;.  Neely,  17  Penn.  St.  227. 

8  Adam  v.  Kerr,  1  B.  &  P.  360; 
Murdock  v.  Hunter,  1  Brock.  135; 
Dudley  v.  Sumner,  5  Mass.  438 ;  Van 
Doren  v.  Van  Doren,  2  Pen.  (N.  J.) 
745;  Mott  V.  Doughty,  1  Johns.  Cas. 
230;  Armstrong  v.  Den,  3  Green  (N. 
J.),  18G;  Mardis  v.  Shackleford,  4  Ala. 
493;  Waldo  v.  Russel,  5  Mo.  387  ; 
McGowan  v.  Laughlan,  12  La.  An. 
242;  Howard  v.  Snelling,  32  Ga.  195; 
Fitzhugh  V.  Croghan,  2  J.  J.  Marsh, 
429. 

698 


*  Wright  V.  Doe  d.  Tathara,  1  A.  & 
E.  21,  22,  per  Tindal,  C.  J. 

'•  See  supra,  §  696. 

6  Adam  v.  Kerr,  1  B.  &  P.  360; 
Webb  V.  St.  Lawrence,  3  Bro.  P.  C. 
640 ;  Murdock  v.  Hunter,  1  Brock. 
135;  Quimby  I'.  Buzzell,  16  Me.  470; 
Dunbar  v.  Marden,  13  N.  H.  311  ; 
Dudley  v.  Sumner,  5  Mass.  438  ;  Ho- 
mer V.  Wallis,  11  Mass. '309;  Valen- 
tine V.  Piper,  22  Pick.  95;  Armstrong 
V.  Den,  3  Green  (N.  J.),  186;  Powers 
V.  ]\IcFerran,  2  Serg.  &  R.  44 ;  Mc- 
Dermott  v.  McCormick,  4  Harr.  (Del.) 
543;  Dorsey  v.  Smith,  7  Har.  &  J. 
345;  Clark  v.  Boyd,  2  Ohio,  56;  Bus- 
sey  r.  Whitaker,  2  Nott  &  McC.  364; 
Howard  v.  Snelling,  32  Ga.  195  ; 
Thomas  y.  Wallace,  5  Ala.  268;  Foote 
V.  Cobb,  18  Ala.  585;  McGowan  v. 
Laughlan,  12  La.  An.  242;  Little  v. 
Chauvin,  1  Mo.  626;  Clardy  v.  Rich- 
ardson, 24  Mo.  295;  Fitzhugh  v.  Crog- 
han, 2  J.  J.  ]\Iar.sh.  429  ;  Mapes  v. 
Leal,  2  7  Tex.  345.  Under  statute  of 
frauds,  see  infra,  §  888. 

T  Miller  v.  Dillon,  2  T.  B.  Men.  73; 
Jones  I'.  Cooprider,  1  Blackf.  47. 

8  Valentine  v.  Piper,  22  Pick.  90  ; 


CHAP.  IX.] 


DOCUMENTS:    ATTESTING   WITNESSES. 


[§  729. 


be  cumulatively  proved,^  or  alternatively.^  But,  as  a  general 
rule,  handwriting  of  the  party  executing  cannot  be  proved  until 
there  is  bond  fide  but  unsuccessful  effort  to  prove  the  hand- 
writing of  the  deceased  witness.^  The  admission  of  the  party 
executing  can  be  received  as  secondary  evidence  in  default  of 
proof  of  handwriting.*  Where  the  absent  attesting  witness 
signed  by  a  mark,  then  the  signature  of  the  party  executing 
should  be  proved.^ 

§  728.  If  an  attesting  witness  is  sick,  his  deposition  may  be 
taken,  or  the  case  may  be  continued  until  his  recov-    c-^jp^  j,^,j_ 
ery :    but   his  non-production  on    account    of   sickness   '^*^"':®  , , 

•''•'■  _  roceivablo 

will  not  let  in  other  proof   of   execution.^     Blindness   on'y "" 

•  1  1  11  1  proof  of 

on  part  of   the  witness  has  been  ruled  not  to  be  an   sickness  of 

1  ,  »  ,       , .        _  witness. 

adequate  excuse  tor  non-production.' 

§  729.  In  English  chancery  practice,  when  a  will  is  to  bo 
proved,  all  the  attesting  witnesses,  if  they  can  be  found, 
must  be  called.^  In  other  courts,  in  respect  to  all  doc- 
uments requiring  attestation,  it  is  enough  to  admit 
the  document,  if  one  of  several  attesting  witnesses  be 
called,  even  though  the  others   are   attainable.^     But  where  a 


Calling 
one  attest- 
injr  witness 
ordinarily 
sulficient. 


Sluby  r.  Cbamplin,  4  Johns.  R.  461; 
McPlierson  v.  Rathbone,  11  Wend.  9G; 
People  V.  Mfllenry,  19  AVend.  482; 
Borst  V.  Eiiipie,  5  N.  Y.  33;  though 
see  Brown  v.  Kimball,  25  Wend.  259. 
^  Thomas  v.  Le  Baron,  8  Mete.  355; 
Gelott  V.  Goodspeed,  8  Cush.  411; 
Clark  r.  Ilougliton,  12  Gray,  38  ;  Ser- 
vis  V.  Nelson,  14  N.  J.  Eq.  94  ;  Tur- 
ner V.  Moore,  1  Brev.  (S.  C.)  23G ; 
Clark  V.  Boyd,  2  Oh.  5G;  Gibbs  v. 
Cook,  4  Bibb,  535. 

*  Jones  V.  Lovell,  1  Cranch  C.  C. 
183;  McPherson  t'.  Rathbone,  11 
Wend.  90  ;  Clark  r.  Sanderson,  3 
Binn.  192  ;  Raines  v.  Philips,  1  Leio;h, 
483  ;  Cox  r.  Davis,  17  Ala.  711;  Oli- 
phant,  V.  Taggart,  1  Bay,  255. 

8  Pelletreau  v.  Jaekson,  11  Wend. 
110.  See  Farnsworth  r.  Briggs,  G  N. 
II.  501. 

*  Kingwood  r.  Bethlehem,  1  Green 
N.  J.),  221.    Supra,  §  723. 


^  Gilliam  v.  Perkinson,  4  Randolph, 
325 ;  Watts  v.  Kilburn,  7  Ga.  35G. 
See  supra,  §  690. 

"  Harrison  r.  Blades,  3  Camp.  457. 

•^  Cronk  v.  Frith,  9  C.  &  P.  197  ;  2 
M.  &  R.  2G2;  Rees  v.  Williams,  7 
Exch.  51;  though  see  Pedler  r.  Paige, 
1  M.  &  Rob.  258. 

8  Gresley's  Ev.  §120;  Bootlc  u. 
Blundell,  19  Ves.  494  ;  McGregor  v. 
Tophani,  3  H.  of  L.  Cas.  155;  Bow- 
man V.  Bowman,  2  M.  &  Rob.  501. 
See  Charles  v.  Iluber,  78  Peun.  St. 
448. 

0  Andrew  i'.  Motley,  12  C.  B.  (N. 
S.)  520  ;  Adam  v.  Kerr,  1  B.  &  P. 
300;  Holdfast  v.  Dowsing,  2  Str.  1254; 
Belbin  v.  Skcats,  1  Swab.  &  Tr.  US; 
Jackson  v.  Shelden,  22  Me.  569  ; 
Montgomery  v.  Dorion,  7  N.  II.  475  ; 
Molcher  v.  Flanders,  40  N.  II.  139  ; 
Btn-ke  v.  Miller,  7  Cush.  517;  Mott  v. 
Doughty,  1  Johns.  Cas.  230;  Powers  t;. 

699 


§  732.]  THE  LAW   OF  EVIDENCE.  [BOOK  II. 

statute  prescribes  several  attesting  witnesses  as  essential  to  the 
due  execution  of  an  instrument,  then  the  absence  of  all  of  them 
should  be  accounted  for,  in  order  to  let  in  secondary  evidence  of 
the  execution. 1 

§  730.  An  attesting  witness,  being  called  rather  by  the  law 
Witness  itself,  than  by  the  party  who  puts  him  on  the  stand,  is 
cniitra^  Open  to  be  contradicted,  or  to  have  his  testimony  sup- 
dieted  by  plemented  by  such  party .^  So  by  such  party  he  may 
ing  him.  be  tested  by  leading  questions,  and  by  the  other  proc- 
esses usual  to  cross-examination. 2  It  is  said,  however,  that  his 
general  character  for  veracity  cannot  be  attacked  by  the  party 
calling  him.^  A  denial  by  a  witness  of  his  signature,  if  such 
denial  be  unrebutted,  vacates  the  attestation.^  A  failure  of  rec- 
ollection by  the  witness,  however,  does  not  have  this  effect ;  but 
the  blank  may  be  filled  up  by  secondary  evidence.® 

§  731.  A  deceased  subscribing  witness,  however,  cannot  be 
But  not  by  impeached  by  proving  his  own  declarations  disparaging 
own  dfc'"^  the  evidence  of  his  signature.  In  an  English  case  of 
laiations.  much  interest,'^  this  point  was  elaborately  discussed, 
and  it  was  finally  concluded  that  to  admit  such  evidence  would 
not  merely  infringe  the  rule  excluding  hearsay,  but  would  ex- 
pose the  most  solemn  formalities  to  doubt. 

§  732.  A  generation,  however,  cannot  be  passed  without  either 

the  death  or  the  disappearance  of  attesting  witnesses ; 

uments        and  hcncc  as  to  an  instrument  whose  alleged  execution 

years  old      took  place  thirty  years  before  it  is  offered  in  evidence, 

McFerran,  2  S.  &  R.  44;  Mc Adams  v.  ford,  4  Strobli.  9G.     See  New  Haven 

Stilwell,  13  Penn.  St.  90  ;  Burnett  v.  Bk.  v.  Mitchell,  15  Conn.  206. 

Thompson,  13  Ired.  L.  379.  ^  Bowman  v.  Bowman,  2  M.  &  Rob. 

1  Wright  V.  Tatham,  1  A.  &  E.  21;  501  ;  Parkin  v.  Moon,  7  C.  &  P.  409  ; 
Cunliffe  V.  Sefton,   2  East,  183.     See  R.  v.  Chapman,  8  C.  &  P.  558. 
Whitelocke  v.  Musgrove,   1    C.  &  M.  ■*  Whitaker  v.  Salisbury,   15    Pick. 
511  ;  Doe   v.    Paul,   3   C.   &  P.  613;  534. 

Adam  v.  Kerr,  1  B.  &  P.  360.  ^  Booker  i\  Bowles,  2  Blackf.  90. 

2  Supra,  §§  500,  549,  550;  Fitzgerald  ^  j^fra,  §§  739,  888;  Park  v.  Mears, 
V.  Elsee,  2  Camp.  635;  Ley  v.  Ballard,     3  Esp.   171  ;  Ley  v.  Ballard,  3  Esp. 

3  Esp.  173,  n. ;  Thomas  v.  Le  Baron,  173,  n.  ;  Fitzgerald  v.  Elsee,  2  Camp. 
8  Mete.  355  ;  Hall  v.  Phelps,  2  Johns.  635;  AVhitaker  v.  Salisbury,  15  Pick. 
451;  Ketchumr.  Johnson,  3  Green  Ch.  534;  Hall  v.  Phelps,  2  Johns.  451  ; 
(N.  J.),  370  ;   Patterson   v.  Tucker,  Spencer  v.  Bedford,  4  Strobh.  96, 

4  Halst.  (N.  J.)  322  ;  Duckwall  v.  '  Stobart  v.  Dry  den,  1  M.  &  W. 
Weaver,  2  Ohio,  13;  Spencer  v.  Bed-  615. 

700 


CHAP.  IX.]  DOCUMENTS  :    ATTESTING    WITNESSES. 


[§  733. 


the  attestincj  witnesses  need  not  be  called .^     So  arbi-   attesting 

witness 

trary  is  tliis  rule,  that  it  is  applied  even  where  the  wit-  need  not 
ness  is  proved  to  be  living,^  and  in  court,^  though  to 
insure  the  admission  of  the  document,  under  such  circumstances, 
it  must  on  its  face  and  in  its  mode  of  production  be  free  from 
suspicion.^  It  is  essential,  also,  as  a  condition  of  such  admission, 
that  the  document  should  be  produced  from  the  proper  custo- 
dian.^ A  deed,  also,  to  be  so  received  must  be  executed  in  con- 
formity with  the  law  at  the  time  in  force,°  and  must  be  by  a  per- 
son having  title. ^ 

§  733.  It  has  been  frequently  held  that  there  must  be  proof  of 
accompanying  possession  to  enable  a  deed,  over  thirty    Accrni- 

.  .  .  panving 

years  old,  to  be  read  in  evidence  without  proof  of  exe-   possei^sion 
cution.^     Paying  taxes  is  primd  facie  proof  of  posses-   be  proved. 


1  Supra,  §§  194-97-703;  Burling 
V.  Paterson,  9  C.  &  P.  570;  Tal- 
bot V.  Hodson,  7  Taunt.  251;  R.  v. 
Farringdon,  2  T.  R.  471  ;  Mc-Ke- 
nire  v.  Fraser,  9  Ves.  5;  Vattier  v. 
Hinde,  7  Pet.  253;  Stoddard  v.  Cham- 
bers, 2  How.  U.  S.  284 ;  Little  v. 
Downing,  37  N.  H.  355;  Pitts  v.  Tem- 
ple, 2  Mass.  538 ;  Stockbridge  v. 
Stockbridge,  14  Mass.  256  ;  King  v. 
Little,  1  Cnsh.  436 ;  Northrop  v. 
Wright,  24  Wend.  226;  Clark  v. 
Owens,  18  N.  Y.  434;  Urket  v. 
Coryell,  5  Watts  &  S.  60;  McReynolds 
V.  Longenbergcr,  57  Penn.  St.  13;  Bell 
V.  McCawley,  29  Ga.  355;  Doe  v.  Roe, 
31  Ga.  693 ;  Carter  v.  Chaudron,  21 
Ala.  72;  Burgin  v.  Chcnault,  9  B. 
Mon.  285. 

2  Ibid.;  Doe  v.  Burdett,  4  A.  &E.  19. 
8  Marsh   v.    Collnett,    2    Esp.  666. 

See  Lawry  r.  Williams,  13  Me.  281. 

*  Roe  V.  Rawlings,  7  East,  291  ; 
Doe  V.  Samples,  8  A.  &  E.  151 ;  Jack- 
son V.  Davis,  5  Cow.  123  ;  Willson  v. 
Betts,  4  Denio,  201  ;  Lau  v.  Miimma, 
43  Penn.  St.  267  ;  Mcath  v.  Winches- 
ter, 3  Bing.  N.  C.  200  ;  Reaume  v. 
Chambers,  22  Mo.  36 ;  Fell  v.  Young, 
63  111.  106. 


^  See  supra,  §§  194-7,  for  authori- 
ties to  this  point. 

0  Boyle  v.  Chambers,  32  Mo.  46; 
though  see  White  v.  Hatchings,  40 
Ala.  253. 

T  Fell  V.  Young,  63  111.  106.  Su- 
pra, §  194. 

8  1  Ph.  Ev.  276 ;  Isack  v.  Clarke, 
1  Roll.  132;  Forbes  v.  Wale,  1  W.Bl. 
532  ;  Crane  v.  Marshall,  16  Mc.  27  ; 
Homer  v.  Cilley,  14  N.  H.  85  ;  Clark 
V.  Wood,  34  N.  II.  447;  Bank  of  Mid- 
dlebury  v.  Rutland,  33  Vt.  414; 
Stockbridge  v.  West  Stockbridge,  14 
Mass.  25  7;  Rust  v.  Boston  ]\Iill  Corpo- 
ration, 6  Pick.  158;  Green  r.  Chelsea, 
24  Pick.  71;  Ridgeley  r.  Johnson,  11 
Barb.  527 ;  Jackson  v.  Blanshan,  3 
Johns.  R.  292  ;  Jackson  v.  Davis,  5 
Cow.  123  ;  Zeigler  t'.  Iloutz,  1  Watts 
&  S.  533  ;  Hall  v.  Gittings,  2  liar.  & 
J.  380;  Dishazcr  v.  Maitland,  12 
Leigh,  524 ;  Shanks  r.  Lancaster,  5 
Grat.  110;  Winston  r.  Gwathmoy,  8 
B.  Mon.  19;  Middloton  r.  Mass,  2 
Nott  &  M.  55  ;  Duncan  v.  Beard,  2 
Nott  &  M.  400.  Sec,  however,  con- 
tra, McKenire  v.  Fiaser,  9  Ves.  5  ; 
Barr  v.  Gratz,  4  Wheat.  213;  Town- 
send  V.  Downer,   32   Vt.  183,  ;   Lewis 

701 


§  736. 


THE   LAW   OF   EVIDENCE. 


[book  II. 


sion.^  But  this  doctrine,  as  lias  been  already  shown,^  cannot 
be  sustained  on  principle;  and  we  must  now  conclude  that  for 
the  admissibility  of  such  deeds,  proof  of  contemporaneous  pos- 
session is  unnecessary,  though  without  such  proof  the  deeds  may 
be  entitled  to  little  or  no  weight.^ 

§  784.  A  will,  under  which  possession  has  been  maintained  for 
thirty  years,  is  in  like  manner  admissible,^  and  in  such  case,  the 
thirty  years  have  been  held  not  to  begin  to  run  until  the  testa- 
tor's death.^  But  a  will  which  has  not  been  proved  or  recorded, 
and  on  which  no  claim  has  been  made  for  fifty  years,  is  not  ad- 
missible Avithout  proof.^ 

§  735.  It  is  still  an  open  question  in  England  whether  it 
is  necessary,  when  there  is  an  attesting  witness  to 
the  seal  of  a  corporation,  to  call  such  witness,  or 
whether  the  proof  of  the  seal  of  the  corporation  is  not 
enough. 7 

When,  after  notice  to  produce  a  deed,  the  adverse 
party  produces  it  and  claims  an  interest  under  it,  then, 
producer"^  as  the  two  parties  make  the  rightful  execution  of  the 
deed  under   deed  the  common  postulate  of  their  cases,  the  subscrib- 

notice  and  _  ■•■  '  _ 

claims  an     inor  witnesses  need  not  be  called.^     But  this  result  will 

interest  '^  ,      i  ,  t         •  •  , 

under  it,  not  be  worked  by  mere  production,  without  an  interest, 
attesting      on  the  part  of  the  person  producing,  subsisting  at  the 


Deeds  by 
corporation 
proved  by 
corporate 
seal. 

§736, 

When  ad- 


V.  Laroway,  3  John.  Cas.  283 ;  Hew- 
lett V.  Cock,  7  Wend.  371  ;  Willson 
V.  Betts,  4  Denio,  201  ;  Brown  v. 
Wood,  G  Rich.  Eq.  (S.  C.)  155;  Wag- 
ner V.  Alton,  1  Rice,  100  ;  Nixon  v. 
Porter,  34  Miss.  697. 

^  Williams  v.  Hillegas,  5  Penn.  St. 
492. 

2  Snpra,  §  199. 

8  Ibid.      See,  also,  infra,  §  1359. 

*  Shaller  t'.  Brand,  6  Binn.  437. 

^  Jackson  v.  Blanshan,  3  Johns. 
292  ;  Fetherly  v.  Wagoner,  11  Wend. 
599.  See  Do'e  v.  Owen,  8  C.  &  P. 
751 ;  though  see  Doe  v.  Wolley,  8  B. 
&  C.  22  ;  3  C.  &  P.  702,  where  it  was 
held  that  the  date  of  the  will  was  the 
starting-point ;  and  see  Harris  v.  Eu- 
banks,  1  Speers,  183. 

702 


*  Meegan  r.  Boyle,  19  How.  130. 

'  Doe  V.  Chambers,  4  A.  &  E.  410; 
S.  C.  6  N.  &  M.  539  ;  St.  John's  Ch. 
V.  Steinmetz,  18  Penn.  St.  273  ;  Bar- 
ton V.  Wilson,  9  Rich.  (S.  C.)  273. 
As  to  the  practice  in  respect  to  seals, 
see  supra,  §  694. 

8  Rearden  v.  Minter,  5  M.  &  Gr. 
204  ;  Orr  v.  Morice,  3  B.  &  B.  139  ; 
6  Moore,  347;  Bradshaw  v.  Bennett, 
1  M.  &  R.  143;  Doe  v.  Waiawright,  5 
A.  &  E.  520  ;  Knight  v.  Martin,  Gow, 
26  ;  McGregor  v.  Wait,  10  Gray,  72; 
Jackson  v,  Kingsbury,  17  Johns.  R. 
157;  Jackson  I'.  Halstead,  5  Cow.  216; 
Herring  v.  Rogers,  30  Ga.  615;  Mo- 
Gee  V.  Guthry,  32  Ga.  307;  Williams 
V.  Keyser,  11  Fla.  234.  See  supra,  §§ 
152-160,  690. 


CHAP.  IX.]  DOCUMENTS  :   ATTESTING   WITNESSES.  [§  739. 

time  of  the  trial. ^     Nor  can  an  irrelevant  paper  be  by   witnesses 

.  .         need  not 

such    process   introduced.^      But    where   parties   claim    be  called. 
under  a  common  ancestor,  the  exception  applies.'^ 

§  737.  A  party  cannot  take  advantage  of  his  own  wrong  in 
withholding  a  document ;    and  consequently,  if  a  doc-   When  ad- 
ument  having  attesting  witnesses  is  withheld  after  due    reTusesYo^ 
notice,  a  party  desiring  to  prove  such  instrument  sec-   atTg'it^g 
ondarily  is  relieved    from  the  necessity  of  calling  at-   witnesses 

•^     ,  ./  o  need  not  be 

testing  witnesses.*  called. 

§  738.  A  lost  or  destroyed  document  may  be  proved,  as  is 
elsewhere  fully  seen,^  by  secondary  evidence  ;  and  to    „ 

,  .-,  ,  .  •  ,         So  as  to 

supply  such  evidence,  the  attesting   witnesses  are  the   lost  docu- 
proper  persons  primarily  to  call.     Should  their  names, 
however,  be  lost,  or  they  be  out  of  the  reach  of  process,  the  docu- 
ment may  be  proved  aliunde.^     If,  however,  their  names  are 
known,  they  must  be  called,  and  the  fact  of  attestation  proved 
by  them.'^ 

§  739.  It  is  not  generally  necessary  that  an  attesting  witness 
should  be   able  to  recollect  the  circumstances  attend-    ^  ^  . 

Sutncient 

ing  his  signature,  or  the  fact  that  he  saw  the  maker  of   if  witness 

,.  ,  •!•  OT'  ^''*"  prove 

the  instrument  attach  to  it   his  name.''     It  is  enough,    his  own 

primd  facie,  if  he  swears  that  the  signature  is  his  own,    ^'°" 

and  adds  that  it  would  not  have  been  affixed  but  for  the  purposes 

1  Collins  V.  Bayntun,  1  Q.  B.  117;  8  Pick.  1-1 G;  Ballard  v.  Perry,  28  Tex. 
Doe  V.  Cleveland,  9  B.  &  C.  8G4  ;  347.  See  Neely  r.  Neely,  17  Penn.  St. 
Carr  v.  Burdiss,  1  C,  M.  &  R.  784;  227.  As  to  adjudications  under  stat- 
Curtis  r.  McSweeny,  Ir.  Cir.  R.  343.  ute  of  frauds,  sec  infra,  §§  885-9. 

2  McGee  v.  Guthry,  32  Ga.  307.  The  Romans  considered  it  enough 

*  Burghart  v.  Turner,  12  Pick.  534.  if   attesting   witnesses   were   able    to 

*  Poole  V.  Warren,  8  A.  &  E.  588  ;  prove  that  they  were  present  at  and 
Cooke  V.  Tans  well,  8  Taunt.  450;  saw  the  signing.  See  Nov.  73,  1,  2. 
Davis  I'.  Spooner,  3  Pick.  284.  See  It  is  not  necessary,  liowcver,  that  the 
supra,  §  157.  witness  should  be  able  to  identify  the 

*  Supra,  §  142.  handwriting  as    in  itself  that  of   the 

*  See,  as  to  lost  instruments  gen-  writer;  it  is  suHicient  if  it  be  testified 
erally,  supra,  §  129  e<  seq.  ;  Grilhth  that  the  particular  signature  was  made 
V.  Huston,  7  J.  J.  Marsh.  385.  by  the  writer  in  the  witness's  presence. 

'  See  cases  cited  supra,  §  142  ;  and  Subscribing  witnesses   must  testify  to 

as  to  lost  will,  see  §§  138-9.  the  genuineness  of  their  own  writing  ; 

*  Supra,  §  518.  Sandilands,  in  re,  and  such  genuineness  is  prima  facie 
L.  R.  G  C.  P.  411;  ^laugham  v.  Hub-  proof  of  the  genuineness  of  the  signa- 
bard,  8  B.  &  C  IG  ;  Russell  v.  CofTin,  ture  in  chief. 

703 


§  740.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


tion  of 
party. 


of  attestation.^  If  he  can  merely  swear  to  his  own  signature, 
other  evidence  of  the  genuineness  of  the  instrument  may  be  then 
received.2  Even  though  he  testifies  positively  that  he  did  not  see 
the  parties  to  the  instrument  sign,  it  is  enough  if  he  proves  that 
they  acknowledged  their  signatures  in  his  presence ;  ^  or  if  he 
proves  the  delivery  of  an  instrument  already  signed  and  sealed, 
to  which  his  signature  as  a  witness  is  attached.^ 

§  739  a.  A  primd  facie  case  of  identification  of  the  person  exe- 
Must  be  cuting  the  document  is  necessary  ;  ^  but  such  identifica- 
primd'facie   tion  need  not  be  by  the  attesting  witnesses,  but  may 

identitica-      ,  , .  .  . 

be  aliunde.^  The  proof  of  identity,  however,  need  be 
only  inferential ;  and  the  fact  that  the  names  are  the 
same  may,  unless  there  be  grounds  of  suspicion,  ordinarily  sup- 
ply the  inference.'^  Delivery  can  be  inferred  from  proof  of  signa- 
ture by  the  attesting  witness,  though  the  witness  has  no  recollec- 
tion of  anything  but  seeing  the  signature  of  the  parties.^ 

§  740.  Wherever  a  statute  authorizes  the  acknowledging  of  an 
When  Stat-  instrument,  providing  at  the  same  time  that  such  in- 
."cknmd-^  strument  shall  be  admissible  in  evidence  on  proof  of 
edged  in-     its   acknowledgment,  then,  if   the  conditions   required 

strument  .   .  . 

evidence,  it  by  the  Statute  as  prerequisites  of  the  acknowledging 
essary  to  appear  from  the  record  to  have  been  observed,  such  in- 
fng  wit-* "  strument  is  admissible  as  primd  facie  proof.  It  is  not 
ness.  necessary  in  such  case  to  call  the  attesting  witness  ;  but 

the  instrument  may  be  put  in  evidence,  after  the  acknowledg- 
ment required  by  the  statutes,  either  by  force  of  the  statutes,  or 

1  Burlincr   v.   Paterson,  9   C.  &  P. 


V.  Paterson,  9 
5  70;  Hemphill  v.  Dixon,  1  Henipt. 
235;  Alvord  v.  Collin,  20  Pick.  418; 
New  Haven  Bk.  v.  Mitchell,  15  Conn. 
206;  Hall  v.  Luther,  13  Wend.  491; 
Bennett  v.  Fulmer,  49  Penn.  St.  155; 
Pearson  v.  Wightman,  1  Mill  S.  C. 
336  ;  Gwinn  v.  Radford,  2  Litt.  (Ky.) 
137. 

2  Crabtree  v.  Clark,  20  Me.  337; 
Curtis  V.  Hall,  1  South.   (N.  J.)   361. 

3  Munns  v.  Dupont,  3  Wash.  C.  C. 
32;  Hollenback  v.  Fleming,  6  Hill 
(N.  Y.),  303;  Hale  v.  Stone,  14  Ala. 
803.  As  to  rule  under  statute  of 
frauds,  see  infra,  §§  885-9. 

704 


*  Higgins  V.  Bogan,  4  Harr.  (Del.) 
330.  See  Harden  v.  Hays,  14  Penn. 
St.  91;  Allen  v.  Holden,  32  Ga.  418; 
Lazarus  v.  Lewis,  5  Ala.  457. 

6  Brown  v.  Kimball,  25  Wend.  260; 
Russell  V.  Tunno,  11  Rich.  (S.  C.) 
303.     For  other  cases  see  supra,  §  701. 

®  Goodhue  v.  Berrien,  2  Sanf.  Ch. 
630;  Hamsher  v.  Kline,  57  Penn.  St. 
397;  Moss  v.  Anderson,  7  Mo.  337; 
Crockett  v.  Campbell,  2  Humph.  411. 
Infra,  §  1273. 

■^  Supra,  §  701,  and  cases  cited  in- 
fra, §  1273. 

8  Burling  v.  Paterson,  9  C.  &  P. 
570.     Infra,  §  1313. 


CHAP.  IX.]        DOCUMENTS  :   PROOF   OF   WHEN  RECORDED. 


[§ 


740. 


at  common  law,  by  proving  the  execution.^  The  record,  how- 
ever, must  be  in  the  proper  court.^  And  mere  registration  does 
not  entitle  a  deed  to  be  read  in  evidence,  without  an  express  stat- 
utory provision  to  that  effect.^  The  acknowledgment  must  be  in 
due  form,  as  prescribed  by  local  law.*     Thus  where  the  local  law 


^  Supra,  §118.  Houghton  v.  Jones, 
1  Wall.  702  ;  Younge  v.  Guilbeau,  3 
Wall.  636  ;  Edmondson  v.  Lovell,  1 
Cranch  C.  C.  103;  Dubois  v.  New- 
man, 4  Wash.  C.  C.  74  ;  Fellows  v. 
Pedrick,  4  Wash.  C.  C.  477;  Web- 
ster V.  Calden,  55  Me.  171;  Bellows 
V.  Copp,  20  N.  H.  492;  Eaton  v. 
Campbell,  7  Pick.  12;  Com.  v.  Em- 
ery, 2  Gray,  80  ;  Samuels  v.  Borrow- 
scale,  104  Mass.  207  ;  Morris  v. 
Wordsworth,  17  Wend.  103;  People 
V.  Denison,  17  Wend.  312;  Sheldon 
V.  Stryker,  42  Barb.  284  ;  Shortz  v. 
Unangst,  3  Watts  &  S.  45 ;  Jordan 
V.  Stewart,  23  Penn.  St.  244;  Duflfey 
V.  Congregation,  48  Penn.  St.  46;  Doe 
V.  Prettyman,  1  Houst.  339 ;  Ayres  v. 
Grimes,  3  Har.  &  J.  95;  Hutchison 
V.  Rust,  2  Grat.  394  ;  Fisher  i-.  Butch- 
er, 19  Ohio,  406;  Doe  v.  Johnson,  3 
111.  522;  Holbrook  v.  Nichol,  36  111. 
161;  Sharp  i'.  AVickliffe,  3  Litt.  10; 
Bell  V.  McCawley,  29  Ga.  355  ;  Doe 
V.  Roe,  36  Ga.  403;  Toulmin  v.  Aus- 
tin, 5  St.  &  P.  410;  Eastland  v.  Jor- 
dan, 3  Bibb,  186;  Clark  v.  Troy,  20 
Cal.  219 ;  Simpson  v.  Mundee,  3 
Kans.  181;  Smith  v.  Hughes,  23  Tex. 
248;  Page  v.  Arnim,  29  Tex.  53.  Sec 
3  Washb.  on  Real  Prop.  522. 

The  New  York  statute  (2  Fay's 
Stat.  14)  provides  that  "  every  writ- 
ten instrument,  except  promissory 
notes  and  bills  of  exchange,  and  ex- 
cept the  last  wills  of  deceased  persons, 
may  be  proved  or  acknowledged  in  the 
manner  now  provided  by  law;  and  the 
certificate  of  the  proper  oflicer  in- 
dorsed thereon  shall  entitle  such  in- 
strument to  be  received  in  evidence, 
with  the  same  effect  and  in  the  same 
VOL.  I.  45 


manner  as  if  such  instrument  were  a 
conveyance  of  real  estate." 

Under  this  statute  we  have  the  fol- 
lowing :  "  The  defendant  also  claimed 
that  it  was  irregular  to  prove  the 
transfer  of  the  stock  by  Riggs  by 
means  of  an  acknowledgment  made 
by  the  subscribing  witness  before  a 
notary,  such  acknowledgment  being 
made  long  after  the  power  of  attorney 
is  assumed  to  have  been  executed  by 
Riggs,  and  shortly  before  it  was  oflered 
in  evidence.  There  is  nothing  in  this 
objection.  The  Laws  of  1833,  c.  271, 
§  9,  provide  that  '  every  written  in- 
strument, except  promissory  notes, 
bills  of  exchange,  and  the  last  wills  of 
deceased  persons,  may  be  proved  or 
acknowledged  in  the  manner  now  pro- 
vided by  law  for  taking  the  proof"  or 
acknowledgment  of  conveyances  of 
real  estate.  The  certificate  thus  taken 
is  to  be  used  in  evidence  in  the  same 
manner  and  with  the  same  effect  as  if 
the  instrument  were  a  conveyance  of 
real  estate.'  There  can  be  no  doubt 
that  the  power  of  attorney  is  a  '  writ- 
ten instrument,'  and  falls  within  the 
statute,  and  the  acknowledgment  may 
be  made  at  any  time  before  the  paper 
is  oflered  in  evidence."  Dwight,  C, 
Holbrook  v.  New  Jersey  Zinc  Co.  57 
N.  Y.  624. 

2  Secrest  v.  Jones,  21  Tex.  121. 

^  Williams  v.  Griflin,  4  Jones  (N. 
C.)  L.  31;  Payne  v.  McKinney,  30 
Ga.  83;  Robertson  v.  Kennedy,  1 
Stew.  (Ala.)  245;  Brock  v.  He.iden, 
13  Ala.  370;  and  see  cases  cited  su- 
pra, §  1 15. 

*  Wood  V.  Weiant,  I  Comst.  (N, 
Y.)  77;  Campbell   v.  Hoyt,  23  Barb. 

705 


§  741.]  THE  LAW  OF  EVIDENCE.  [BOOK  II. 

requires  a  certificate  from  the  officer  that  he  personally  knew  the 
subscribing  witness,  a  deed  cannot  be  admitted  without  such  cer- 
tificate.^ The  fact  that  the  acknowledgment  of  a  deed  was  after 
suit  brought  does  not  preclude  the  admission  of  the  deed.^  It  is 
scarcely  necessary  to  add,  that  the  statutes  authorizing  the  ad- 
mission of  such  instruments  as  recorded  do  not  exclude  them  if 
unrecorded.^  A  fortiori  the  original  in  no  sense  loses  its  evi- 
dential power  by  being  recorded.*  That  a  party  having  an 
exemplification  of  a  recorded  deed  cannot  put  such  copy  in 
evidence,  unless  the  original  deed  is  out  of  his  power,  we  have 
already  seen.^ 

§  741.  In  England  it  seems  to  be  doubted  whether  such  deeds 
are  admissible,  without  proving  attestation,  against  any  one  ex- 
cept the  party  on  whose  acknowledgment  the  deed  is  recorded.^ 
In  this  country,  in  absence  of  an  enabling  statute,  acknowledg- 
ment of  an  instrument  before  the  proper  officer  does  not  super- 
sede the  necessity  of  proving  its  execution  in  order  to  put  it  in 
evidence.'^  But  where  there  is  an  enabling  statute,  the  certificate 
of  the  proper  officer,  before  whom  an  acknowledgment  and  the 
accompanying  attestation  are  taken,  has  been  held  primd  facie 
evidence  of  the  facts  set  forth  in  such  acknowledgment  and  at- 
testation.^ The  extent  to  which  the  acknowledgment  can  be  dis- 
puted will  be  hereafter  discussed.^ 

555;  Anderson  v.  Turner,  2  Litt.  (Ky.)  v.  Manly,  19  Me.  331 ;  Day  v.  Moore, 

237;  Eastland  I'.  Jordan,  3  Bibb,  186;  13    Gray,   522;    Miller  v.    Hale,    26 

Johnson  v.  Fowler,  4  Bibb,  521 ;  An-  Penn.  St.  432;  Sheehan  v.  Davis,  17 

drews    v.    Marshall,    26    Tex.    212;  Oh.    St.   571;    Dobbs    v.  Justice,    17 

Gaine  v.  Ann,  26   Tex.  340.     As  to  Ga.  624. 

disputing    the     acknowledgment    by  ^  See  supra,  §  115. 

parol  proof,  see  infra,  §  1052.  ^  Bullcr's    Nisi    Prius,    255.      See 

1  Morgan  v.  Curtenius,4  McL.  366;  Taylor's  Ev.  §  1651. 

Job  V.  Tebbetts,  9  111.  143;  Bone  v.        '  Mullis   v.    Gavins,   5  Blackf.    77; 

Greenlee,  1  Coldw.  29.     See  Johnston  Ravisies  v.  Alston,  5  Ala.  29  7;  Catlin 

V.    Ewing,    35   111.    518;    Sheldon    v.  v.  Ware,  9  Mass.    218;  Eichelberger 

Stryker,  42  Barb.  284.  v.  Sifford,  27  Md.  320;  Kidd  v.  Alex- 

2  Lanning  v.  Dolph,  4  "Wash.  C.  C.  ander,  1  Rand.  (Va.)  456. 

624.  '  See  cases  cited  infra,  §  1052;  Doe 

8  Bucksport  V.    Spofford,    12    Me.  v.  Lloyd,  1  M.  &  Gr.  684;  Jackson  v. 

487;  Morris  r.  Vanderen,  1  Dall.  64?  Schoonmaker,  4  Johns.  R.  161  ;  Peo- 

Young  V.  Com.  6  Binn.  88.  pie  v.  Hurlbutt,  44  Barb.  126;  Thur- 

*  U.  S.  V.  Laub,    12  Pet.   1;  Vose  man  v.  Cameron,  24  Wend.  87;   Ste- 

»  Infra,  §  1052. 
706 


CHAP.  IX.] 


DOCUMENTS. 


[§  742. 


Xir.  INSPECTION  OF  DOCUMENTS  BY  ORDER  OF  COURT. 

§  742.  Independently  of  the  right  to  inspection  based  on  the 
old  doctrine  of  profert  and  oyer,i  a  party  is  entitled,  in   j^^, 
view  of  litigation,  to  a  rule  for  inspection  of  such  doc-   granted  to 
uments  in  the  hands  of  the  opposite  party,  as  are  es-   prodJfction 
sential  to  the  maintenance  of   contested   rights.^     In-   °^  P'^p®"- 
spection  will  also  be  granted  where  a  party  is  desirous  of  seeing 
and  copying  a  document  in  his  opponent's  hands,  for  the  purpose 
of  bringing  suit  on  the  same.^     To  grant  the  order  it  is  not  nec- 
essary that  the  document  be  in  the  hands  of  the  party  against 
whom  the  order  is  asked.    It  is  enough  if  the  document  is  in  the 
hands  of  his  agent,  or  in  some  way  subject  to  his  authority.* 


vens  V.  Martin,  18  Penn.  St.  101 ; 
Keichline  v.  Keichline,  54  Penn.  St. 
75;  Williams  v.  Baker,  71  Penn.  St. 
482;  Dutl"  v.  Wynkoop,  74  Penn.  St. 
300;  Heeter  v.  Glasgow,  79  Penn.  St. 
79  ;  Middleton  v.  Dubuque,  19  Iowa, 
467;  Johnson  v.  Pendergrass,  4  Jones 
(N.  C.)  L.  479  ;  Bledsoe  v.  Wiley,  7 
Humph.  507. 

In  Doe  V.  Lloyd,  1  M.  &  Gr.  671, 
684,  a  deed,  requiring  enrolment  un- 
der the  mortmain  act  was  produced 
at  the  trial,  and  bore  the  following  in- 
dorsement; "  Enrolled  in  the  high 
court  of  chancery,  the  17th  of  De- 
cember, 1836,  being  first  duly  stamped 
according  to  the  tenor  of  the  statutes 
made  for  that  purpose.  D.  Drew." 
It  was  held  that,  without  proving  the 
signature  or  the  ofDcial  character  of 
Mr.  Drew,  the  memorandum  was  evi- 
dence that  the  deed  was  enrolled  on 
the  day  stated,  it  having  been  certijied 
to  the  court,  by  an  officer  of  the  enrol- 
ment office,  that  the  memorandum  was 
m  the  usual  form.  See,  also,  to  same 
effect,  Kinnersley  v.  Orpe,  1  Doug. 
58,  per  BuUer,  J.,  recognized  in  Doe 
r.  Lloyd,  1  M.  &  Gr.  685;  Compton 
V.  Chandless,  4  Esp.  19,  per  Ld.  Ken- 
yon. 

1  See  infra,  §  753. 


^  Arundel  v.  Holmes,  8  Dowl.  119  ; 
Rayner  v.  Ritson,  6  B.  &  S.  888;  King 
V.  King,  4  Taunt.  66G;  Browning  v. 
Aylwin,  7  B.  &  C.  204;  Woolmer  v. 
Devereux,  2  M.  &  Gr.  758;  Morrow 
V.  Saunders,  1  B.  &  B.  318;  Price  v. 
Harrison,  8  C.  B.  N.  S.  617. 

As  to  practice  under  federal  stat- 
ute, see  lasigi  v.  Brown,  1  Curtis  C. 
C.  401. 

As  to  New  York  practice,  see  Ilause- 
maa  v.  Sterling,  61  Barb.  34  7;  and 
see,  also,  Jackson  r.  Jones,  3  Cow. 
17;  Utica  Bank  v.  Hillard,  6  Cow. 
62;  Gould  V.  McCarthy,  11  N.  Y. 
575  ;  Davis  v.  Dunham,  13  How.  Pr. 
425. 

Under  the  Code,  this  remedy  is  co- 
extensive with  that  by  bill  of  discov- 
ery. Lefferts  v.  Brampton,  24  How. 
Pr.  257. 

'  Rowe  r.  Ilowden,  4  Bing.  539,  n. ; 
Blakey  u.  Porter,  1  Taunt.  38G  ;  Arun- 
del V.  Holmes,  8  Dowl.  119;  Miller  v. 
Mather,  5  How.  160;  Reid  v.  Cole- 
man, 2  C.  &  M.  456;  Powers  v.  El- 
mendorff,  4  How.  Pr.  60. 

*  Morrow  v.  Sanders,  3  Moore, 
671;  Gigner  v.  Bayly,  5  Moore,  71  ; 
Steadman  v.  Arden,  4  Dowl.  &  L.  16; 
15  M.  &W.  587;  Ley  v.  Barlow,  1 
Ex.  R.  800. 

707 


§  744.] 


THE   LAW   OF   EVIDENCE. 


[book  11. 


The  mere  fact  that  letters  are  written  to  the  plaintiff's  solici- 
tor "  in  confidence,"  and  under  a  pledge  not  to  disclose  their  con- 
tents to  any  one  but  the  plaintiff  and  his  legal  advisers,  affords 
no  defence  to  an  application  for  an  order  to  inspect  them.  But 
if  they  are  not  merely  confidential  communications,  but  are 
written  in  answer  to  inquiries  by  the  plaintiff's  solicitor  with  a 
view  to  and  in  contemplation  of  anticipated  litigation,  they  are 
privileged.  1 

§  743.  To  sustain  such  a  rule  the  following  conditions  must 
exist :  Firsts  the  party  applying  must  make  an  affidavit  to  the 
effect  that  he  has  no  copy  in  his  hands  or  attainable  by  himself  ;2 
though  under  peculiar  circumstances  the  court  may  at  its  discre- 
tion dispense  with  such  affidavit ;  ^  secondly,  the  applicant  must 
have  a  legal  or  equitable  interest  in  the  document ;  ^  thirdly^ 
it  must  appear  that  the  paper  is  in  the  hands  of  the  holder  as  in 
some  sense  the  trustee  of  the  applicant ;  or  the  application  will 
be  refused.^ 

§  744.  Where  these  conditions  exist,  the  court  (or  a  judge  at 
chambers)  may  compel  the  production,  not  merely  of  documents 


1  M'Corquodale  v.  Bell,  L.  R.  1  C.  P. 
D.  471;  Cossey  v.  London,  Brighton 
&  South  Coast  Railway  Co.  L.  R. 
6  C.  P.  146  ;  and  Skinner  v.  Great 
Northern  Railway  Co.  Law  Rep.  9 
Ex.  298,  followed;  Fenner  v.  London 
&  Southeastern  Railway  Co.  Law 
Rep.  7  Q.  B.  767,  observed  upon  and 
explained.     Infra,  §§  579,  585-7. 

2  When  the  object  is  to  obtain  ac- 
cess to  a  paper  relied  on  by  the  oppo- 
site side,  the  usual  practice  is,  for  the 
party  to  make  affidavit  to  some  de- 
fence attacking  the  genuineness  of 
the  instrument  ;  Woolmer  v.  Dever- 
eiix,  2  M.  &  Gr.  758;  Birming.  R.  R. 
V.  White,  1  Q.  B.  286;  though  in  some 
cases  the  application  will  be  granted, 
even  without  an  affidavit,  wherever 
there  was  no  reason  to  suspect  that 
the  application  was  not  to  enable  the 
party  to  set  up  a  frivolous  or  merely 
technical  defence.  Ibid. ;  S.  C.  under 
name   of    Woolner    v.    Devereux,    9 

708 


Dowl.  672;  Beal  v.  Bird,  2  D.  &  R. 
419. 

This  right  has  been  held  to  exist  in 
reference  to  negotiable  paper,  to  pol- 
icies of  insurance ;  Goldsmidt  v.  Mar- 
ryat,  1  Camp.  562;  Rayner  v.  Rit- 
son,  6  B.  &  S.  888  ;  and  to  informal 
written  agreements.  Price  v.  Harri- 
son, 8  C.  B.  N.  S.  617. 

8  Ibid.;  Portmore  v.  Goring,  4  Bing. 
152;  12  Moore,  363  ;  Morrow  v.  Saun- 
ders, 1  B.  &  B.  318  ;  Bluck  v.  Gom- 
pertz,  7  Ex.  R.  67. 

*  Lawrence  v.  Hooker,  5  Bing.  6; 
Cocks  V.  Nash,  9  Bing.  723  ;  Smith 
V.  Winter,  3  M.  &  W.  309 ;  Goodliflf 
V.  Fuller,  14  M.  &  W.  4 ;  Powell  v. 
Bradbury,  4  C.  B.  541 ;  Pritchett  v. 
Smart,  7  C.  B.  625;  Partridge,  ex 
parte,  1  Har.  &  W.  350. 

6  Pickering  v.  Noyes,  1  B.  &  C.  262; 
Blogg  V.  Kent,  6  Bing.  615.  See  Park- 
hurst'r.  Gosden,  2  C.  B.  894. 


CHAP.  IX.]  DOCUMENTS  :   INSPECTION   OF.  [§  745. 

on  which  suit  is  brought,  but  of  evidentiary  writings  (^.  g.  letters 
written  by  the  defendant  which  the  plaintiff  could  use  as  indic- 
ative of  a  contract),  which  had  been  lodged  by  both  parties  in 
the  hands  of  a  third  person  as  trustee,  and  which  the  applicant 
might  find  important  to  his  case.^  It  should  be  added  that  in 
England,  since  Lord  Brougham's  Evidence  Act  of  1851,  a  party  is 
entitled  on  application  to  inspect  all  documents  in  the  custody  of 
the  opposite  part}^,  relevant  to  any  pending  litigation,  and  to  take 
examined  copies  of  the  same,  in  all  cases  on  which  a  bill  of  dis- 
covery would  lie  for  the  production  of  such  papers. 

§  745.  In   England,  the  queen's  bench  will  enforce  by  man- 
damus the  production  for  inspection  of  any  document    „ 

IT  •  1  •  •  So  as  to 

of  a  public  nature  in  which  a  party  may  be  interested.^    public  doc- 

An  applicant,  however,  to  entitle  him  to  the  rule,  must 
show  that  he  has  an  interest  in  the  documents  sought  to  be  in- 
spected, and  that  the  application  is  for  a  legitimate  purpose.^  If 
the  application  bo  merely  to  gratify  curiosity,  or  to  discover  a 
flaAV  for  contingent  litigation,  the  rule,  in  England,  will  not  be 
granted.*  In  the  United  States,  however,  so  far  as  concerns  our 
judicial  records,  and  our  registries  of  wills  and  deeds,  no  such 
distinction  exists  ;  as  by  statute,  or  usage  settled  in  default  of 
statute,  the  officers  having  custody  of  such  documents  are  re- 
quired to  exhibit  them,  and  to  give  copies  of  them  on  the  pay- 
ment of  the  proper  fee.  In  cases  where  no  such  right  is  estab- 
lished, a  party  may,  in  a  proper  case,  obtain  inspection,  at 
common  law,  by  a  writ  of  mandamus  issued  out  of  a  supreme 
court,  in  all  cases  where  an  inspection  of  a  public  document  is 
necessary  to  enable  the  applicant  to  obtain  justice.  But  a  man- 
damus will  not  be  granted  unless  the  documents  desired  lie  at 
the  basis  of  the  complainant's  suit.^  Nor  will  a  court  compel 
a  disclosure  of  documents  which  state  policy  requires  to  be  kept 
secret.^ 

»  Price  V.Harrison,  8  C.  B.  N.  S.  Bank,   1    Duer,   652;  S.   C.  8  Ilo^r. 

617;    Stone  v.  Strange,  3    II.   &    C.  80. 

641  ;  Pape   v.   Lister,   L.   11.  6    Q.  B.  ^  R.  v.  Staffordshire.  G  A.  &  E.  99, 

242  ;  Reid   v.   Coleman,    2   C.    &  M.  100. 

456;  Owen    v.  Niekson,    3   E.    &   E.  »  Ex  parte  Bri-gs,  1  E.  &  E.  881. 

602  ;  Steadman  v.  Arden,  4  D.  &  L.  *  R.  v.  StafTord.shire,  ut  supra. 

16  ;  15  M.  &  W.  587;  Exeliansc  Bk.  »  AtluTfold  r.  Beard,  2  T.  R.  CIO. 

V.  Monteath,  4  How.  Pr.  280;  Pindar  «  Supra,  §§  604-5. 
V.  Seaman,  33  Barb.  140;  Iloyt  v.  E\. 

700 


§  746.]  THE  LAW   OF  EVIDENCE.  [BOOK  H. 

§  746.  The  books  and  papers  of  a  corporation,  though  not 
So  as  to  open  to  strangers,^  niay  upon  order  of  court  be  pro- 
cornora-  duced  for  the  inspection  of  corporators,^  provided  it 
tjons.  \,Q  shown  that  such   inspection  is  necessary  to  a  suit 

then  instituted,  or  at  least  to  some  specific  dispute  or  question 
depending,  in  which  the  applicant  is  interested.^  Although  a 
•wider  jurisdiction  is  intimated  by  some  of  the  earlier  cases,^  it 
is  now  settled  in  England  that  the  remedy  is  confined  to  cases 
where  the  inspection  is  necessary  to  the  adjudication  of  a  par- 
ticular issue.^  Thus  the  application  was  refused  in  a  case  where 
members  of  a  corporation  asked  to  inspect  all  the  documents  of 
the  corporation,  alleging  that  its  affairs  were  improperly  con- 
ducted, and  complaining  of  misgovernment  in  some  particulars 
not  affecting  themselves,  nor  then  in  dispute ;  ^  nor,  when  a 
stockholder  is  sued  by  a  company  for  calls,  will  he  be  granted  a 
rule  to  inspect  the  minute-books  of  the  company  and  of  the 
meetings  of  the  directors,  "  particularly  with  respect  to  the 
calls,"  when  his  object  is  to  fish  out  a  defence.'''  A  person  not 
being  a  member  of  the  college  of  physicians,  not  having  a 
license,  cannot  avail  himself  of  this  right  in  order  to  obtain  the 
inspection  of  the  books  of  the  college.® 

1  Bolton  V.  Liverpool,  3  Sim.  467;  «  K.  v.  Merchant  Tailors'  Co.  2  B. 
1  Myl.  &  K.  88.  &  Ad.  115. 

2  R.  V.  Shelley,  3  T.  R.  145;  R.  v.  '  Birming.,  Brist,  &  Thames  June. 
Lucas,  10  East,  235;  R.  v.  Travan-  Ry.  Co.  v.  White,  1  Q.  B.  282.  See 
nion,  2  Chitty,  366,  n. ;  Am.  R.  R.  Co.  Lnperial  Gas  Co.  v.  Clarke,  7  Bing. 
V.  Haven,  101  Mass.  398;  People  v.  95;  and  see  Powers  v.  Elmendorfi",  4 
Throop,  12  Wend.  183  ;  Bank  of  How.  60;  S.  C.  2  Code  R.  44;  John- 
Utica  V.  Hillard,  6  Cow.  62;  Mad-  son  v.  Consoh  Silver  Co.  2  Abb.  (N. 
dox  V.  Graham,  2  Met.  (Ky.)  56;  S.)  413  ;  Hoyt  v.  Exch.  Co.  1  Duer, 
Cockburn  v.  Union  Bk.   13  La.  An.  652;  S.  C.  8  How.  89. 

289;  Angell  &  Ames  on  Corp.  (10th  ^  A  prebendary,  so  it  has  been  I'uled 

ed.)  707;  4  Wait's  Practice,  205.  in  England,  is  entitled  at  all  times  to 

8  R.  V.  Merchant  Tailors'  Co.  2  B.  inspect  tlie  documents  of  the  chapter. 

&  Ad.   115;   In   re   Burton  and   the  Young  v.  Lynch,  1  W.  Bl.  27. 

Saddlers'  Co.  31  L.  J.  Q.  B.  62.  A  bishop,  also,  holds  his  register  of 

*  R.  V.  Hostmen  of    Newcastle,    2  presentations  and  institution  open  to  a 

Str.   1223;  R.  v.  Babb,  3  T.  R.  581,  mandamus,  at  the  petition  of  a  person 

per  Ashurst,  J.  claiming  title  to  a  living  in  the  dio- 

6  R.  V.  Merchant  Tailors'  Co.  2  B.  cese.     R.  v.  Bishop  of  Ely,  8  B.  &  C. 

&  Ad.  115.  112  ;  5.  C.  under  name  of  Bp.  of  Ely, 


2M.  &  R.  127. 


710 


CHAP.  IX.]  DOCUMENTS  :   INSPECTION   OF.  [§  749. 

§  747.  Whenever  a  document,  in  the  hands  of  a  public  ad- 
ministrative officer,  is  requisite  to  enable  a  party  to  ob- 
tain his  rights  in  a  court  of  justice,  a  mandamus,  or,    public  ad- 

T  .  •  1         r  ,         Ml  1  1  iniiiistra- 

in  ordniary  practice,  a  rule  ot  court,  will  be  granted  to  tive  offi- 
compel  an  exhibition  of  such  document  for  inspection. 
When  the  act  is  merely  ministerial,  involving  no  executive  dis- 
cretion, then  it  may  be  compelled  b}'-  mandamus.^  Custom-house 
officers  may  be  compelled  in  this  way  to  exhibit  their  books  to 
merchants  interested  in  the  entries,^  and  so  may  other  officers  or 
custodians  of  papers  where  the  inspection  is  necessary  to  estab- 
lish some  disputed  claim.^  The  applicant  for  the  order,  however, 
in  order  to  obtain  relief,  must  have  an  interest  in  the  documents, 
or  must  seek  to  inspect  them  for  some  public  object  connected 
with  the  purposes  for  which  the  books  are  kept.'* 

§  748.  It  has  consequently  been  held  in  England  that  fund- 
holders  are  entitled  to  inspect  and  take  copies  of  the   so  as  to 
deposit  and  transfer  books  of  the  bank  of  England,^  or   frSer*""* 
of  the  East  India  Company,  which  relate  to  stock  in   i^^^ks. 
which  they  claim  to  be  interested.^      The   same  rule  is  appli- 
cable to  all  private  corporations.'' 

§  749.  When  private  writings  are  produced  for  inspection, 
under  an  order  of  court,  the  court  will  not,  in  any  case,  inspection 
compel  the  impounding  of  papers,  or  their  deposit  with  not*sur- 
an  officer  of  the  court  or  any  third  party.  The  owner  render. 
of  the  document  is  allowed  to  keep  it  in  possession.  The  order 
simply  permits  its  inspection,  while  in  the  hands  of  the  owner, 
or  his  attorney,  by  the  opposing  party,  or  by  witnesses.^ 

1  Goodell,  ex  parte,  14  Johns.  325;  «  Geery  v.  Hopkins,  2  Ld.  Raym. 
People  V.  Eell,  38  N.  Y.  386;  Gotten  851  ;  7  Mod.  129,  S.  C. ;  Taylor's 
V.   Ellis,   7   Jones    L.   (N.   C.)    545  ;     Evidence,  §  1350. 

Pacific  11.    R.  V.    Governor,   23  Mo.  t  See  Iloyt  v.  Exch.   Co.  1  Duer, 

353.  G52  ;  5.  C.  8   How.   Pr.  89;    Jolinson 

2  Crew  V.  Saunders,  2  Str.  1005.  r.  Consol.  Silver  Co.  2  Abb.  (N.   S.) 
8  See  note  by  Mr.  Nolan   to  R.  v.  413. 

Hostmen  of  Newcastle,   2   Str.  1223.  *  Thomas    v.  Dunn,    C    M.  &    Gr. 

See,  also,  R.  v.  King,  2  T.  R.  235,  per  274;    Rogers   r.     Turner,    21    L.    J. 

Ashurst,  J.,  as  to  the  assessments  of  Exch.  9.     Infra,  §  752. 

the  land  tax.  "  At   common   law,    and    indepen- 

*  Crew    I'.   Saunders,    2   Str.   1005,  dently  of   recent    statutes,    courts   of 

See  Atherfold  v.  Beard,  2  T.  R.  610.  law  had  the   power  to  order  inspeo- 

«  Foster  v.  Bk.  of  England,  8  Q.  B.  tion  of  papers,  which,  by  the  plead- 

689.  ingSi  or  by  being  used    in  evidence, 

711 


§  750.] 


THE   LAW   OF   EVIDENCE. 


[book  II. 


demand 
must  be 
shown. 


§  750.  As  a  matter  of  practice,  an  order  to  produce  for  inspec- 
Previous  tioii  is  regarded  as  a  last  resort,  and  will  not  usually  be 
granted,^  unless  it  appear  by  affidavit  that  a  demand  to 
inspect  has  been  made  to  the  custodian,  and  inspection 
has  been  denied.^  The  objection,  however,  that  the  affidavit 
exhibits  no  such  demand,  must  be  taken  before  the  merits  are 
discussed.^  The  application  may  be  made  on  a  verified  petition,* 
as  well  as  by  motion  backed  by  affidavits.^  The  affidavit  may 
be  by  any  person  cognizant  of  the  facts.^ 


came  -within  the  control  of  the  court. 
When  any  deed  is  showed  in  court, 
the  deed,  by  judgment  of  law,  doth 
remain  in  court  all  the  term  at  which 
it  is  showed,  for  the  whole  term  is  as 
one  day,  and  the  party  may  demand 
oyer  during  the  time  it  is  so  in 
court.  Wymark's  case,  5  Rep.  148; 
Simpson  i'.  Garside,  2  Lutwyche,  1641. 
A  new  trial  having  been  granted,  the 
court  allowed  the  plaintiff  inspection 
of  a  deed  read  in  evidence  by  the 
defendant  at  the  first  trial,  but  denied 
it  as  to  another  deed,  the  execution  of 
which  was  admitted  at  the  former 
trial,  but  which  was  not  offered  in 
evidence.  Hewitt  v.  Pigott,  7  Bing. 
400. 

"  But  the  court,  in  exercising  this 
control  over  papers  and  documents 
ofTered  in  evidence,  will  merely  grant 
inspection  and  examination  by  the 
party  and  his  witnesses,  either  in  open 
court  or  before  an  officer  of  the  court, 
or  in  the  presence  of  the  party  pro- 
ducing them,  or  his  attorney,  and  will 
not  take  them  from  the  latter  and  de- 
liver them  into  the  possession  of  the 
other  side.  2  Taylor  on  Evidence, 
§  1593;  Thomas  v.  Dunn,  6  M.  &  Gr. 
274."  Depue,  J.,  Hilyard  v.  Harri- 
son, 37  N.J.  173. 

1  2  Wail's  Practice,  553;  Taylor's 
Evidence,  §  1353. 

3  R.  V.  Wilts.  &  Berks.  Can.  Co.  3 
A.  &  E.  477 ;  5  Nev.  &  M.  344,  S.  C; 

712 


R.  V.  Bristol  &  Exeter  Ry.  Co.  4  Q.  B. 
162. 

3  4  Q.  B.  171,  per  Ld.  Denman, 
recognizing  R.  v.  East  Cos.  Ry.  Co. 
10  A.  &  E.  531,  545,  n.  b. 

As  to  the  nature  of  the  refusal,  see 
R.  V.  Brecknock  &  Aberg.  Can.  Co. 
3  A.  &  E.  222,  223,  per  Ld.  Denman 
and  Littledale,  J. 

Where  a  shareholder  applied  to  the 
committee  for  leave  to  inspect  the 
books  of  the  company,  and  was  told 
by  the  chairman  that  the  committee 
would  take  time  to  consider  the  re- 
quest, whereupon,  ten  days  after- 
wards, he  again  applied  to  the  clerk, 
who  refused  inspection,  though  it  did 
not  appear  that  the  refusal  had  been 
authorized  by  the  committee  ;  the 
court  of  the  queen's  bench  held  that 
no  sufficient  refusal  by  the  committee 
had  been  proved,  to  warrant  the  mak- 
ing absolute  a  rule  for  a  mandamus." 
R.  V.  Wilts.  &  Berks.  Can.  Co.  3  A. 
&  E.  477;  5  Nev.  &  M.  344,  S.  C. ; 
See  Birm.  R.  R.  v.  White,  1  Q.  B. 
282  ;  R.  V.  Trustees,  5  B.  &  Ad. 
778. 

*  Dole  V.  Fellows,  5  How.  Pr.  451. 

^  Exch.  Bank  v.  Monteath,  4  How. 
Pr.  280 ;  Johnson  r.  Consol.  Silver 
Co.  2  Abb.  N.  S.  413;  Pindar  v.  Sea- 
man, 33  Barb.  140. 

^  Exchange  Bank  i'.  lilonteath,  4 
How.  Pr.   280. 


CHAP.  IX.]  DOCUMENTS  :   INSPECTION   OF.  [§  753. 

§  751.  What  is  elsewhere  said  as  to  the  protection  of  witnesses 
from  questions  which  call  for  criminatory  answers,  Production 
applies  to  the  production  of  criminatory  documents.  °or"docu''-' 
Neither  equity  nor  common  law  practice  will  compel  a  "^^"'^  ^^'" 
person  to  allow  the  inspection  of  either  public  or  pri-  compelled. 
rate  documents  in  his  custody,  where  the  document,  if  produced, 
would  criminate  the  party  producing.^  The  risk,  however,  to 
which  the  custodian  is  exposed,  must  be  that  of  a  real,  and  not 
that  of  a  nominally  penal  prosecution.^  Neither  a  quo  luarranto^^ 
nor  a  mandamus,^  is  a  criminal  proceeding  in  the  above  sense. 
At  the  same  time,  inspection  will  be  ordered  when  the  applicant 
has  reason  to  believe  that  the  document  in  question  was  forged  ; 
and  the  court,  on  a  proper  case,  will  impound  the  document  for 
the  purposes  of  a  criminal  prosecution.^ 

§  752.  It  may  be  necessary,  in  order  to  determine  as  to  the 
meaning  or  genuineness  of  a  writing,  that  it  should  be  Documents 
examined  by  others  than  the  applicant,  or  his  attorney.  nJ^fI,e|i  by' 
Hence,  on  due  cause  shown,  the  court  will  authorize  an   '"'crpret- 

'  '  CM  ana 

inspection  by  other  persons,  as  for  instance,  the  plain-   experts, 
tiff's  land  agent,  even  though  he  be  himself  a  witness  in  the  suit.^ 
In  cases  where  genuineness  is  contested,  the  court  may  order  the 
contested  documents  to  be  exhibited  to  experts  in  writing.^ 

§  753.  We  have  already  noticed  the  principles  on  which  rules 
to  produce  documents  for  inspection  are  granted  in  the   poed  when 
present  practice.     It  may  still  not  be  out  of  place  to   ^an'^b'e^ 
observe  that,  under  the  old  system  of  pleading,  a  party    "nspected. 

1  R.  V.  Purnell,  1  W.  Bl.  37  ;  1  <  R.  v.  Ambcrgato,  17  Q.  B.  957. 
Wils.  239,  S.  C;  R.  v.  Ilcydon,  1  &  Thonws  v.  Dunn,  C  M.  &  Gr. 
W.  Bl.  351  ;  R.  V.  Buckingham  Js.  274  ;  Woolmer  r.  Devoreu.x,  2  U.  & 
8  B.  &  C.  375  ;  R,  v.  Cornelius,  2  Gr.  758;  5.  C.  3  Scott,  N.  K.  224  ; 
Str,  1210  ;  1  Wils.  142,  S.  C. ;  Wigr.  Richcy  v.  Ellis,  Ale.  &  Nap.  Ill;  Rog- 
Disc.  §  130;  Montague  v.  Diidman,  crs  v.  Turner,  21  L.  J.  E.k.  9;  Bo/d 
2  Ves.  Sen.  397  ;  Glynn  r.  Houston,  v.  Petrie,  L.  R.  3  Ch.  Ap.  818,  over- 
1  Keen,  329;  Taylor's  Ev.  §  1351;  ruling  S.  C.  L.  R.  5  Eq.  290. 
Byass  v.  Sullivan,  21  How.  (N.  Y.)  «  Att.  Gen.  v.  Whit  wood  Loral 
Pr.   50.       See    Bradshaw    v.  Murphy,  Board,  40  L.  J.  Ch.  590. 

7  C.  &P.  012.      Supra,  §§  533-5.  "<  Swansea  Vale   R.  R.  v.  Budd,  L. 

2  R.  V.  Cadogan,  5  B.  &  A.  902  ;  R.  2  Eq.  274  ;  Boytl  v.  Potric,  L.  R. 
1  D.  &  R.  550.  3  Ch.  Ap.  818,  qualifying  .V.  C.  L,  R. 

8  R.   V.   Shelley,   3  T.  R.    141;  R.     5  Ya\.  290. 
V.  Purnell,  1  W.  Bl.  45. 

713 


§  754.]  THE   LAW   OF  EVIDENCE.  [BOOK  II. 

making  either  title  or  defence  under  a  deed  was  bound,  unless 
the  deed  was  lost  or  in  some  other  way  out  of  his  power,  to  make 
profert  of  it ;  in  other  words,  tender  it  for  inspection.  The  op- 
posing party  could  then  crave  oyer  of  the  deed  ;  and  in  answer 
to  this  praj'^er,  the  deed  was  either  formally  or  constructively 
brought  into  court,^  and  was  set  out  on  the  records  at  full. 
The  process,  however,  was  not  only  narrow  in  its  application, 
but  clumsy  in  its  operation.  In  England  it  was  abolished  in  the 
Common  Law  Procedure  Act  of  1852  ;  and  in  this  country,  in 
some  states,  was  never  adopted,  in  others,  has  been  superseded. 
But  even  where  the  process  is  abolished,  the  right  it  secures  re- 
mains. Wherever  a  party  refers  in  his  pleading  to  a  sealed  in- 
strument, as  the  basis  of  his  claim,  the  opposing  party  may 
obtain,  by  order  of  court,  the  inspection  of  the  instrument.^  This 
right  has  always  been  regarded  as  essential  to  justice,  and  the 
courts  have  been  ready  to  exercise  it  irrespective  of  the  question 
of  a  seal.  The  practice  is  for  a  party  desiring  to  inspect  an 
instrument  relied  on  by  the  other  side,  to  apply  either  to  the 
court,  or  to  a  judge  at  chambers,  for  an  order  for  the  production 
of  the  writing.'"^ 

§  754.  Provisions  analogous  to  those  contained  in  the  statutes 
T       ,.        just  noticed  have  been  enacted  in  most  of  the  states  of 

Inspection     •• 

may  be        the  American  Union :  and  where  such  provisions  are  not 

secured  by     .  .  i   r 

bill  of  in  force,  it  has  not  been  unusual  for  common  law  courts, 

vested  with  chancery  jurisdiction,  to  adopt  the  practice 
of  requiring  parties  to  answer  on  interrogatories,  prior  to  the  trial, 
such  questions  as  to  papers  as  would  be  proper  in  a  bill  of  dis- 
covery. The  question  then  arises,  what  relief  would  a  bill  of  dis- 
covery, in  such  cases,  give ;  for  the  relief  which  would  be  given 
in  chancery  is  that  which,  under  ordinary  circumstances,  would 
be  given,  under  the  new  practice,  by  courts  of  common  law.  We 
may  begin  by  saying,  (1.)  that  a  court  will  not  compel  a  party 
to  disclose  immaterial  papers,  nor  papers  which  relate  exclusively 

»  Stephen's    Pleading,   pi.    482-6;  v.  Ellames,  2  Myl.  &  K.  732;  Macin- 

Hutchins  V.  Scott,  2   M.  &  W.  816;  tosh  v.  R.  R.  14  M.  &  W.  548;  1  Hall 

Archp.  of  Cant.  v.  Tubb,  3  Bing.  N.  &  T.  41.  ' 

C.  789  ;  Hillyard  v.  Harrison,   37  N.  »  Woolmcr  v.  Devereux,  2  M.  &  Gr. 

J.  173.     See  Taylor's  Ev.  §  1586.  758;  Thomas  r.  Dunn,   6   M.   &   Gr. 

2  Penarth  R.  R.  v.  CardiflF  Water-  274. 
works,    7   C.  B.  N.  S.  816;  Hardman 

714 


CHAP.  IX.] 


DOCUMENTS  :   INSPECTION   OF. 


[§  T55. 


to  the  case  of  the  holder  of  the  papers,  and  which  in  no  sense  go 
to  make  up  the  case  of  the  comphiinant,  either  as  showing  right 
in  himself  or  disproving  right  in  his  opponent.^  Nor  (2.)  will 
a  disclosure  in  violation  of  the  rules  of  professional  privilege  be 
in  any  case  compelled.^  Nor  (3.)  will  a  disclosure  be  compelled, 
unless  it  appear  from  the  answer  that  the  papers  are  in  the  de- 
fendant's possession  or  power.^  Nor  (4.)  will  officers  of  the  gov- 
ernment be  in  this  way  compelled  to  disclose  confidential  docu- 
ments, whose  publication  would  be  prejudicial  to  the  public 
interests.*  Nor  (5.)  will  a  party  be  in  this  way  compelled  to 
exhibit  papers  which  will  subject  him  to  criminal  prosecutions  or 
forfeitures,^  though  he  cannot  by  this  excuse  avoid  producing 
papers  which  might  simply  expose  him  to  a  suit  for  fraud.^ 

§  755.  With  the  qualifications  just  stated,  a  party  to  a  suit  at 
common  law,  whether  he  be  plaintiff  or  defendant,  can  compel,  in 
equity,  the  disclosure  of  any  papers  tending  either  to  sustain  his 
own  case,"  or  to  damage  the  case  of  his  opponent.^  It  should  be 
kept  in  mind  that  in  all  cases  the  07ius  is  on  the  applicant  to  prove 
his  right  to  the  relief  sought,^  and  that  he  is  ordinarily  bound  by 
the  defendant's  answer  or  affidavits  as  to  the  relevancy  of  the 


1  Smith  V.  Beaufort,  1  Hare,  520 ; 
S.  C.  1  Phill.  220 ;  Bolton  v.  Liver- 
pool, 1  Myl.  &  K.  88  ;  S.  C.  3  Sim. 
467;  Ingilby  v.  Shafto,  33  Beav.  31  ; 
Wright  V.  Vernon,  1  Drew.  344; 
Peile  V.  Stoddart,  1  Hall  &  T.  207; 
Hambrook  v.  Smith,  17  Sim.  209; 
Kettlewell  v.  Barstow,  L.  R.  7  Ch. 
App.  G8G;  Brown  v.  Wales,  L.  R.  15 
Eq.  142. 

2  Supra,  §  585.  Wigram,  Disc.  §§ 
26,  284;  Minet  v.  Morgan,  L.  R.  8  Ch. 
Ap.  3G1;  Wilson  v.  R.  R.  L.  R.  14 
Eq.  47  7;  McCorquodalc  v.  Bell,  L.  R. 
1  C.  P.  D.  471.      Supra,  §  742. 

8  Wigram,  Disc.  §  294  ;  Burbridge 
V.  Robinson,  2  M.  &  Gord.  244  ;  Rey- 
nell  V.  Spryc,  1  De  Gcx,  M.  &  G. 
656. 

*  Rajah  of  Coorg  v.  E.  I.  Co.  30  L. 
J.  Ch.  22C  ;  Marbury  v.  Madison,  1 
Cranch,  144.     Supra,  §  G04. 

'  Wigr.  Disc.  §§  127-14  7;  Montague 


V.  Dudman,  2  Yes.  Sen.  397;  Macau- 
lay  V.  Shackell,  1  Bligh  N.  S.  126. 

8  Bispham's  Eq.  §  502;  Lee  i-.  Read, 
5  Beav.  381;  Reynell  j;.  Sprye,  10 
Beav.  51 ;  Skinner  v.  Judson,  8  Con. 
528;  Howell  v.  Ashmore,  1  Stockt.  (N. 
J.)  82. 

'  Earp  V.  Lloyd,  3  Kay  &  J.  54D; 
Jenkins  v.  Bushby,  L.  R.  2  Eq.  54  7; 
Atty.  Gen.  v.  Lambe,  3  Y.  &  C.  Ex. 
162  ;  Atty.  Gen.  v.  Thompson,  8  Hare, 
106. 

8  Stainton  v.  Chad  wick,  3  M.  & 
Gord.  575;  13  Beav.  320  ;  Atty.  Gen. 
V.  London,  2  Hall  &  T.  1 ;  2  M.  & 
Gord.  24  7;  Thompson  v.  R.  R.  9 
Abb.  (N.  Y.)  Pr.  N.  S.  212,  230.  See 
Erie  R.  R.  r.  Heath,  8  Blatch.  413; 
Cent.  Bk.  v.  White,  3  7  N.  Y.  Sup.  Ct. 
297  ;  Whitworth  v.  R.  11.  .JT  X.  Y.  Sup. 
Ct.  437;  Dambman  v.  Bultcrfield,  4 
Thomp.  &  C.  542. 

»  Wigr.  Disc.  §  2D3. 
715 


§  756.] 


THE    LAW   OF   EVIDENCE. 


[book  II. 


papers,  and  their  custody.^  It  has,  however,  been  held  that  where 
the  defendant  incorporates  the  contested  documents  (which  he 
admits  to  be  in  his  possession)  in  his  answer,  so  as  to  make  them 
form  a  substantial  part  of  it,  the  plaintiff,  in  such  case,  will  be 
held  to  be  entitled  to  inspect  the  documents;  because  the  defend- 
ant, by  exhibiting  them,  has  waived  the  right  to  withhold  them. 
Nor  does  he  retain  his  right  by  claiming,  in  a  subsequent  part  of 
his  answer,  the  privilege  of  withholding  them,  either  as  forming 
no  part  of  his  opponent's  case,  or  as  confidential  communications.^ 
§  756,  A  respondent  cannot  excuse  himself  from  producing 
papers  in  the  hands  of  his  agent  or  of  any  person  under 
his  control.  Such  papers,  if  required,  must  be  pro- 
duced.3  On  the  other  hand,  it  is  not  the  usual  practice 
to  order  the  production  of  papers,  where  it  appears  by 
the  defendant's  answer  that  he  has  a  joint  possession  of 


Papers  not 
under  re- 
spondent's 
control  he 
will  not  be 
compelled 
to  produce. 


1  See  Wigr.  Disc.  §  293  ;  Morrice  v. 
Swaby,  2  Beav.  500;  Gardner  v.  Dan- 
gerfield,  5  Beav.  389.  See  Lamb  v. 
Orton,  22  L.  J.  Ch.  713;  Luscombe  v. 
Steer,  37  L.  J.  Ch.  119. 

2  Hardman  v.  EUames,  2  Myl.  &  K. 
732  ;  Macintosh  v.  R.  R.  1  M.  &  Gord. 
73;   1  Hall  &  T.  41. 

The  English  practice  on  such  a  bill 
is  thus  stated  (Wigram's  Disc.  §  285)  : 
"  The  plaintiff  alleges  in  his  bill  (in 
effect)  that  the  defendant  has  in  his 
possession,  or  power,  deeds,  papers, 
and  •writings  relating  to  matters  men- 
tioned in  the  bill;  and  that,  by  the 
contents  of  such  deeds,  papers,  and 
writings,  if  the  same  were  produced, 
the  truth  of  the  plaintiff's  case  would 
appear.  The  defendant  is  then  re- 
quired by  the  bill  to  admit  or  deny 
the  truth  of  these  allegations ;  if  he 
admits  having  possession,  or  power, 
over  any  such  deeds,  documents,  and 
writings,  he  is  required  by  the  bill, 
and  is  prima  facie  bound  to  describe 
them,  either  in  the  body  of  the  an- 
swer or  in  the  schedule  of  it.  The 
plaintiff  then  moves  the  court  that  the 
defendant  may  be  ordered  to  produce 

716 


or  leave  in  the  Record  and  Writ  Of- 
fice (Gen.  Ord.  57,  16th  Oct.  1852), 
'  the  deeds,  papers,  and  writings  so 
described,  with  liberty  for  the  plain- 
tiff to  inspect  them  and  take  copies 
thereof.'  Though  this  mode  of  pro- 
ceeding has  of  late  years  been  substi- 
tuted for  the  more  cumbersome  course 
of  requiring  the  defendant  to  set  out 
the  contents  of  the  documents  in  his 
answer,  the  orders  for  production  still 
rest  upon  the  principle  that  the  doc- 
uments are  part  of  the  defendant's 
compulsory  examination ;  and  conse- 
quently, at  the  trial  at  law,  the  plain- 
tiff cannot  read  the  writings  produced 
without  putting  in  the  entire  answer 
of  the  defendant,  and  thus  affording 
him  the  benefit  of  any  explanation  he 
may  have  given  respecting  them. 
Smith  V.  Beaufort,  1  Hare,  524;  Brown 
V.  Thornton,  1  Myl.  &  Cr.  243;  Miller 
V.  Gow,  1  Y.  &  C.  Ch.  56."  Wigr. 
Disc.  §  285. 

8  Wigr.  Disc.  §  294 ;  Ex  parte  Shaw, 
Jacob,  272;  Morrice  v.  Swaby,  2  Beav. 
500;  Rodick  v.  Gandell,  10  Beav.  270; 
Palmer  v.  Wright,  Ibid.  234  ;  Monsel 
V.  Lindsay,  13  Ir.  Eq.  R.  144.     Doc- 


CHAP.  IX.] 


PRODUCTION  OF  PAPERS. 


[§  756. 


them  with  somebody  else  who  is  not  before  the  court, ^  and  who 
has  an  interest  in  them  distinct  from  his  own.^  It  is  incumbent, 
in  such  cases,  for  the  plaintiff  to  make  all  the  persons  interested 
parties  to  the  suit,^  though  the  plaintiff  has  the  alternative  of 
requiring  from  the  defendant  a  full  statement  of  the  contents  of 
such  documents.*  It  has  been  also  held  that  no  valid  objection 
can  be  taken  to  an  order  for  the  production  of  memoranda  which 
are  admitted  by  defendant  to  relate  to  the  matters  in  dispute, 
and  to  be  in  his  possession,  on  the  ground  either  that  he  has  a 
lien  upon  them,^  or  that  they  are  intermingled  with  other  entries 
in  the  same  book,  to  a  discovery  of  which  the  plaintiff  is  not 
entitled,  and  which  cannot  be  separated  or  sealed  up.*^ 


uments  pledged  by  the  defendant  are 
not  under  his  control.  Liddell  &  Nor- 
ton, 1  Kay,  App.  xi.  See  Taylor  on 
Ev.  §  1591. 

I  Murray  v.  Walter,  Cr,  &  Ph.  114, 
124,  125,  per  Ld.  Cottenham ;  Taylor 
V.  Rundell,  Cr.  &  Ph.  Ill,  per  Ibid.; 
Reid  V.  Langlois,  1  M.  &  Gord.  627, 
635-638,  per  Ibid.;  2  Hall  &  T.  59, 
69-72,  6\  C;  Morrell  v.  Wootten,  13 
Beav.  105;  Edmonds  v.  Ld.  Foley,  31 
L.  J.  Ch.  384,  per  Romilly,  M.  R.  ; 
30  Beav.  282,  6\  C;  Lopez  v.  Dea- 
con, 6  Beav.  254 ;  Hadley  v.  MacDou- 


gall,  L.  R.  7  Ch.  Ap.  312;  Penney 
V.  Goode,  1  Drew.  474  ;  Wigr.  Disc. 
§  294  ;  Taylor's  Ev.  §  1538. 

2  Glyn  V.  Caulfeild,  3  M.  &  Gord. 
463;  Few  v.  Guppy,  13  Beav.  457. 

^  Lopez  I'.  Deacon,  6  Beav.  258, 
per  Ld.  Langdale  ;  Wigr.  Disc.  §§  294, 
327. 

*  Lopez  V,  Deacon,  6  Beav.  258. 

6  Lockett  V.  Gary,  3  New  R.  405, 
per  Romilly,  M.  R. 

«  Taylor's  Ev.  §  1607;  Carew  v. 
White,  5    Beav.    172. 

717 


END   OF  VOL.   I. 


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